EXECUTION COPY
STRUCTURED ASSET SECURITIES CORPORATION II,
Depositor
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Master Servicer
and
LNR PARTNERS, INC.,
as Special Servicer
and
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
and
ABN AMRO BANK N.V.,
as Fiscal Agent
POOLING AND SERVICING AGREEMENT
Dated as of August 11, 2005
----------
$2,344,068,538
LB-UBS Commercial Mortgage Trust 2005-C5
Commercial Mortgage Pass-Through Certificates,
Series 2005-C5
TABLE OF CONTENTS
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PAGE
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ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES; CERTAIN ADJUSTMENTS TO THE
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES
SECTION 1.01. Defined Terms................................................................11
SECTION 1.02. General Interpretive Principles.............................................108
SECTION 1.03. Certain Adjustments to the Principal Distributions on the Certificates......109
ARTICLE II
CONVEYANCE OF TRUST MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Creation of Trust; Conveyance of Trust Mortgage Loans.......................112
SECTION 2.02. Acceptance of Trust Fund by Trustee.........................................115
SECTION 2.03. Repurchase of Trust Mortgage Loans for Document Defects and Breaches of
Representations and Warranties...........................................117
SECTION 2.04. Representations, Warranties and Covenants of the Depositor..................124
SECTION 2.05. Acceptance of Grantor Trust Assets by Trustee; Issuance of the Class V
Certificates.............................................................126
SECTION 2.06. Acceptance of Loan REMICs by Trustee; Execution, Authentication and Delivery
of Class R-LR Certificates; Creation of Loan REMIC Regular Interests....127
SECTION 2.07. Conveyance of Loan REMIC Regular Interests..................................127
SECTION 2.08. Execution, Authentication and Delivery of Class R-I Certificates; Creation
of REMIC I Regular Interests.............................................128
SECTION 2.09. Conveyance of REMIC I Regular Interests; Acceptance of REMIC II by Trustee..128
SECTION 2.10. Execution, Authentication and Delivery of Class R-II Certificates; Creation
of REMIC II Regular Interests............................................128
SECTION 2.11. Conveyance of REMIC II Regular Interests; Acceptance of REMIC III by
Trustee..................................................................128
SECTION 2.12. Execution, Authentication and Delivery of REMIC III Certificates............129
SECTION 2.13. Acceptance of Loss of Value Reserve Fund by Trustee.........................129
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans........................................130
SECTION 3.02. Collection of Mortgage Loan Payments........................................132
SECTION 3.03. Collection of Taxes, Assessments and Similar Items; Servicing Accounts;
Reserve Accounts.........................................................135
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SECTION 3.04. Pool Custodial Account, Defeasance Deposit Account, Collection Account,
Interest Reserve Account, Excess Liquidation Proceeds Account and Loss of
Value Reserve Fund.......................................................137
SECTION 3.04A. Loan Combination Custodial Accounts for Serviced Loan Combinations..........143
SECTION 3.05. Permitted Withdrawals From the Pool Custodial Account, the Collection
Account, the Interest Reserve Account and the Excess Liquidation Proceeds
Account..................................................................145
SECTION 3.05A. Permitted Withdrawals From the Loan Combination Custodial Accounts..........153
SECTION 3.06. Investment of Funds in the Collection Account, the Servicing Accounts, the
Reserve Accounts, the Defeasance Deposit Account, the Custodial Accounts,
the REO Accounts, the Interest Reserve Account and the Excess Liquidation
Proceeds Account.........................................................162
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions and Fidelity
Coverage; Environmental Insurance........................................164
SECTION 3.08. Enforcement of Alienation Clauses...........................................168
SECTION 3.09. Realization Upon Defaulted Mortgage Loans; Required Appraisals; Appraisal
Reduction Calculation....................................................173
SECTION 3.10. Trustee and Custodian to Cooperate; Release of Mortgage Files...............178
SECTION 3.11. Servicing Compensation; Payment of Expenses; Certain Matters Regarding
Servicing Advances.......................................................179
SECTION 3.12. Property Inspections; Collection of Financial Statements; Delivery of
Certain Reports..........................................................187
SECTION 3.12A. Preparation and Delivery of Certain Statements and Reports to the Serviced
Non-Trust Mortgage Loan Noteholders......................................190
SECTION 3.13. Annual Statement as to Compliance...........................................192
SECTION 3.14. Reports by Independent Public Accountants...................................193
SECTION 3.15. Access to Certain Information...............................................194
SECTION 3.16. Title to REO Property; REO Accounts.........................................195
SECTION 3.17. Management of REO Property..................................................197
SECTION 3.18. Sale of Trust Mortgage Loans and Administered REO Properties................201
SECTION 3.19. Additional Obligations of the Master Servicer and Special Servicer;
Obligations to Notify Ground Lessors and Hospitality Franchisors; the
Special Servicer's Right to Request the Master Servicer to Make Servicing
Advances; Mortgage Enforcement Actions...................................205
SECTION 3.20. Modifications, Waivers, Amendments and Consents; Defeasance.................208
SECTION 3.21. Transfer of Servicing Between Master Servicer and Special Servicer; Record
Keeping..................................................................217
SECTION 3.22. Sub-Servicing Agreements....................................................219
SECTION 3.23. Representations and Warranties of the Master Servicer.......................221
SECTION 3.24. Representations and Warranties of the Special Servicer......................223
SECTION 3.25. Certain Matters Regarding the Purchase of the Trust Mortgage Loan in a Loan
Combination..............................................................224
SECTION 3.26. Application of Default Charges..............................................225
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS; REPORTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions...............................................................228
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SECTION 4.02. Statements to Certificateholders and Others.................................239
SECTION 4.03. P&I Advances With Respect to the Mortgage Pool..............................247
SECTION 4.04. Allocations of Realized Losses and Additional Trust Fund Expenses...........253
SECTION 4.05. Various Reinstatement Amounts...............................................254
SECTION 4.06. Calculations................................................................256
SECTION 4.07. Use of Agents...............................................................256
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates............................................................257
SECTION 5.02. Registration of Transfer and Exchange of Certificates.......................257
SECTION 5.03. Book-Entry Certificates.....................................................265
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates...........................267
SECTION 5.05. Persons Deemed Owners.......................................................267
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE
CONTROLLING CLASS REPRESENTATIVE
SECTION 6.01. Liability of Depositor, Master Servicer and Special Servicer................268
SECTION 6.02. Continued Qualification and Compliance of Master Servicer; Merger,
Consolidation or Conversion of Depositor, Master Servicer or Special
Servicer.................................................................268
SECTION 6.03. Limitation on Liability of Depositor, Master Servicer and Special Servicer..269
SECTION 6.04. Resignation of Master Servicer and the Special Servicer.....................270
SECTION 6.05. Rights of Depositor, Trustee and Serviced Non-Trust Mortgage Loan
Noteholders in Respect of the Master Servicer and the Special Servicer...271
SECTION 6.06. Depositor, Master Servicer and Special Servicer to Cooperate with Trustee...271
SECTION 6.07. Depositor, Special Servicer and Trustee to Cooperate with Master Servicer...271
SECTION 6.08. Depositor, Master Servicer and Trustee to Cooperate with Special Servicer...272
SECTION 6.09. Designation of Special Servicer and Controlling Class Representative by the
Controlling Class; Designation of 000 Xxxx Xxxxxxx Special Servicer by
the 000 Xxxx Xxxxxxx Note B Non-Trust Mortgage Loan Noteholder...........272
SECTION 6.10. Master Servicer or Special Servicer as Owner of a Certificate...............276
SECTION 6.11. Certain Powers of the Controlling Class Representative......................276
SECTION 6.12. Certain Matters Regarding the Serviced Loan Combinations....................279
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default and Outside Servicer Defaults.............................284
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SECTION 7.02. Trustee to Act; Appointment of Successor....................................292
SECTION 7.03. Notification to Certificateholders..........................................293
SECTION 7.04. Waiver of Events of Default and Outsider Servicer Defaults..................293
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default or Outside Servicer
Default..................................................................294
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee...........................................................295
SECTION 8.02. Certain Matters Affecting Trustee...........................................296
SECTION 8.03. Trustee and Fiscal Agent Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans...........................................297
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates...............................297
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of and by Trustee.............298
SECTION 8.06. Eligibility Requirements for Trustee........................................299
SECTION 8.07. Resignation and Removal of Trustee..........................................299
SECTION 8.08. Successor Trustee...........................................................301
SECTION 8.09. Merger or Consolidation of Trustee and Fiscal Agent.........................301
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee...............................301
SECTION 8.11. Appointment of Custodians...................................................302
SECTION 8.12. Appointment of Authenticating Agents........................................303
SECTION 8.13. Appointment of Tax Administrators...........................................304
SECTION 8.14. Access to Certain Information...............................................305
SECTION 8.15. Reports to the Securities and Exchange Commission and Related Reports.......306
SECTION 8.16. Representations and Warranties of Trustee...................................313
SECTION 8.17. The Fiscal Agent............................................................314
SECTION 8.18. Representations and Warranties of Fiscal Agent..............................315
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Trust Mortgage Loans......317
SECTION 9.02. Additional Termination Requirements.........................................319
SECTION 9.03. Outside Administered REO Properties.........................................320
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. REMIC Administration........................................................321
SECTION 10.02. Grantor Trust Administration................................................324
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ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment...................................................................327
SECTION 11.02. Recordation of Agreement; Counterparts......................................329
SECTION 11.03. Limitation on Rights of Certificateholders..................................329
SECTION 11.04. Governing Law; Consent to Jurisdiction......................................330
SECTION 11.05. Notices.....................................................................330
SECTION 11.06. Severability of Provisions..................................................331
SECTION 11.07. Grant of a Security Interest................................................331
SECTION 11.08. Xxxxxx Act..................................................................332
SECTION 11.09. Successors and Assigns; Beneficiaries.......................................332
SECTION 11.10. Article and Section Headings................................................333
SECTION 11.11. Notices to Rating Agencies..................................................333
SECTION 11.12. Complete Agreement..........................................................334
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SCHEDULES AND EXHIBITS
Schedule No. Schedule Description
------------ --------------------
I Trust Mortgage Loan Schedule
II Representations and Warranties of the Depositor
III Exceptions to the Representations and Warranties of the Depositor
IV Schedule of Environmentally Insured Mortgage Loans
V Schedule of Initial Deposit Mortgage Loans
VI Schedule of Mortgage Loans Secured by a Hospitality Property or
Nursing Facility
VII Schedule of Early Defeasance Mortgage Loans
VIII Schedule of Reference Rates
IX Schedule of Class A-AB Planned Principal Balances
Exhibit No. Exhibit Description
----------- -------------------
A-1 Form of Class [A-1] [A-2] [A-3] [A-AB] [A-4] [A-1A] Certificate
A-2 Form of Class X-CP Certificate
A-3 Form of Class X-CL Certificate
A-4 Form of Class [A-M] [A-J] [B] [C] [D] [E] [F] Certificate
A-5 Form of Class [G] [H] [J] [K] [L] [M] [N] [P] [Q] [S] [T]
Certificate
A-6 Form of Class [R-I] [R-II] [R-III] [R-LR] Certificate
A-7 Form of Class V Certificate
B Form of Distribution Date Statement
C Form of Custodial Certification
D-1 Form of Master Servicer Request for Release
D-2 Form of Special Servicer Request for Release
E Form of Loan Payoff Notification Report
F-1 Form of Transferor Certificate for Transfers of Definitive
Non-Registered Certificates
F-2A Form I of Transferee Certificate for Transfers of Definitive
Non-Registered Certificates
F-2B Form II of Transferee Certificate for Transfers of Definitive
Non-Registered Certificates
F-2C Form of Transferee Certificate for Transfers of Interests in Rule
144A Global Certificates
F-2D Form of Transferee Certificate for Transfers of Interests in
Regulation S Global Certificates
G-1 Form I of Transferee Certificate in Connection with ERISA
(Definitive Non-Registered Certificates)
G-2 Form II of Transferee Certificate in Connection with ERISA (Book-
Entry Non-Registered Certificates)
H-1 Form of Transfer Affidavit and Agreement regarding Residual
Interest Certificates
H-2 Form of Transferor Certificate regarding Residual Interest
Certificates
I-1 Form of Notice and Acknowledgment
I-2 Form of Acknowledgment of Proposed Special Servicer
J Form of UCC-1 Financing Statement Schedule
K Sub-Servicers in respect of which Sub-Servicing Agreements are in
effect or being negotiated as of the Closing Date
L-1 Form of Information Request/Investor Certification for Website
Access from Certificate [Holder] [Owner]
L-2 Form of Information Request/Investor Certification for Website
Access from Prospective Investor
M Form of Defeasance Certification
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Exhibit No. Exhibit Description
----------- -------------------
N Form of Seller/Depositor Notification
O Form of Controlling Class Representative Confidentiality Agreement
P Form of Trustee Backup Certification
Q Form of Master Servicer Backup Certification
R Form of Special Servicer Backup Certification
S Form of Outside Master Servicer Notice
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This Pooling and Servicing Agreement (this "Agreement") is dated and
effective as of August 11, 2005, among STRUCTURED ASSET SECURITIES CORPORATION
II, as Depositor, WACHOVIA BANK, NATIONAL ASSOCIATION, as Master Servicer, LNR
PARTNERS, INC., as Special Servicer, LASALLE BANK NATIONAL ASSOCIATION, as
Trustee and ABN AMRO BANK N.V., as Fiscal Agent.
PRELIMINARY STATEMENT:
The Depositor intends to sell the Certificates, which are to be issued
hereunder in multiple Classes and which in the aggregate will evidence the
entire beneficial ownership interest in the Trust Fund.
As provided herein, the Trustee will elect to treat each Early
Defeasance Trust Mortgage Loan, if any, as the primary asset of a separate REMIC
for federal income tax purposes, and each such REMIC will be designated as a
"Loan REMIC". The Class R-LR Certificates (if issued in accordance with Section
2.06) will represent the sole class of "residual interests" in each and every
Loan REMIC, if any, for purposes of the REMIC Provisions under federal income
tax law. A separate Loan REMIC Regular Interest will, on the Closing Date, be
issued with respect to, and will thereafter relate to, each Early Defeasance
Trust Mortgage Loan, if any, included in a Loan REMIC. Each Loan REMIC Regular
Interest, if any, issued with respect to, and relating to, an Early Defeasance
Trust Mortgage Loan in a Loan REMIC, shall also relate to any successor REO
Trust Mortgage Loan with respect to such Early Defeasance Trust Mortgage Loan.
Each Loan REMIC Regular Interest, if any, shall: (i) bear a numeric designation
that is the same as the loan number for the related Early Defeasance Trust
Mortgage Loan set forth on the Trust Mortgage Loan Schedule; (ii) accrue
interest at the related per annum rate described in the definition of "Loan
REMIC Remittance Rate"; and (iii) have an initial Uncertificated Principal
Balance equal to the Cut-off Date Balance of the related Early Defeasance Trust
Mortgage Loan. The Legal Final Distribution Date of each Loan REMIC Regular
Interest, if any, is the Distribution Date immediately following the third
anniversary of the end of the remaining amortization term (as determined as of
the Closing Date) of the related Early Defeasance Trust Mortgage Loan. None of
the Loan REMIC Regular Interests (if issued in accordance with Section 2.06)
will be certificated. Notwithstanding the foregoing, however, if the Trust Fund
does not include Early Defeasance Trust Mortgage Loans, then there will be no
Loan REMICs, neither the Class R-LR Certificates nor any Loan REMIC Regular
Interests will be issued and the provisions of Section 2.06(b) will apply.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the Trust Mortgage Loans (exclusive of the Early
Defeasance Trust Mortgage Loans, if any, and exclusive of any collections of
Additional Interest on the ARD Trust Mortgage Loans, if any, after their
respective Anticipated Repayment Dates), any Loan REMIC Regular Interests and
certain other related assets subject to this Agreement as a REMIC for federal
income tax purposes, and such segregated pool of assets will be designated as
"REMIC I". The Class R-I Certificates will represent the sole class of "residual
interests" in REMIC I for purposes of the REMIC Provisions under federal income
tax law. A separate REMIC I Regular Interest will, on the Closing Date, be
issued with respect to, and will thereafter relate to, each Trust Mortgage Loan
included in REMIC I and each Loan REMIC Regular Interest, if any, included in
REMIC I. Each REMIC I Regular Interest issued with respect to, and relating to,
a Trust Mortgage Loan in REMIC I, shall also relate to any successor REO Trust
Mortgage Loan with respect to such Trust Mortgage Loan. Each REMIC I Regular
Interest issued with respect to, and relating to, any Loan REMIC Regular
Interest, shall also relate to the Early Defeasance Trust Mortgage Loan and any
successor REO Trust Mortgage Loan corresponding to such Loan REMIC
Regular Interest. Each REMIC I Regular Interest shall: (i) bear a numeric
designation that is the same as the loan number for the related Trust Mortgage
Loan set forth on the Trust Mortgage Loan Schedule; (ii) accrue interest at a
per annum rate described in the definition of "REMIC I Remittance Rate"; and
(iii) have an initial Uncertificated Principal Balance equal to the Cut-off Date
Balance of the related Trust Mortgage Loan. The Legal Final Distribution Date of
each of the REMIC I Regular Interests is the Distribution Date immediately
following the third anniversary of the end of the remaining amortization term
(as determined as of the Closing Date) of the related Trust Mortgage Loan. None
of the REMIC I Regular Interests will be certificated.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the REMIC I Regular Interests as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC II". The Class R-II Certificates will represent the sole
class of "residual interests" in REMIC II for purposes of the REMIC Provisions
under federal income tax law. The Legal Final Distribution Date for each REMIC
II Regular Interest is the latest Rated Final Distribution Date. None of the
REMIC II Regular Interests will be certificated. The following table sets forth
the designation and the initial Uncertificated Principal Balance for each of the
REMIC II Regular Interests.
-2-
Initial Uncertificated
Designation of REMIC II Regular Principal Balance of REMIC II
Interests Regular Interests
------------------------------- -----------------------------
A-1-1 $ 52,283,000
A-1-2 $ 25,717,000
A-1A-1 $ 3,660,000
A-1A-2 $ 3,674,000
A-1A-3 $ 7,581,000
A-1A-4 $ 7,156,000
A-1A-5 $ 36,043,000
A-1A-6 $ 4,998,000
A-1A-7 $ 3,976,000
A-1A-8 $105,234,000
A-2-1 $ 39,873,000
A-2-2 $118,670,000
A-2-3 $112,453,000
A-2-4 $ 76,004,000
A-3 $158,000,000
A-AB $ 76,000,000
A-4-1 $ 36,490,000
A-4-2 $106,510,000
A-4-3 $ 67,365,000
A-4-4 $599,160,000
A-M $234,407,000
A-J $187,526,000
B $ 20,510,000
C-1 $ 7,434,000
C-2 $ 24,797,000
D-1 $ 1,373,000
D-2 $ 27,928,000
E $ 23,441,000
F-1 $ 18,347,000
F-2 $ 10,954,000
G-1 $ 6,994,000
G-2 $ 19,377,000
H $ 23,440,000
J-1 $ 413,000
J-2 $ 14,238,000
K $ 20,510,000
L $ 8,790,000
M $ 5,861,000
N $ 8,790,000
P $ 2,930,000
Q $ 5,860,000
S $ 5,860,000
T $ 23,441,538
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the REMIC II Regular Interests as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC III". The Class R-III Certificates will evidence the sole
class of "residual interests" in REMIC III for purposes of the REMIC Provisions
under federal income tax law. For federal income tax purposes, each Class of the
Regular Interest Certificates (exclusive of
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the Class X-CL and Class X-CP Certificates), each REMIC III Component of the
Class X-CL Certificates and each REMIC III Component of the Class X-CP
Certificates will be designated as a separate "regular interest" in REMIC III.
The Legal Final Distribution Date for each Class of Regular Interest
Certificates (exclusive of the Class X-CL and Class X-CP Certificates), for each
REMIC III Component of the Class X-CL Certificates and for each REMIC III
Component of the Class X-CP Certificates is the latest Rated Final Distribution
Date. The following table sets forth the Class designation and original Class
Principal Balance for each Class of the Regular Interest Certificates.
Class Original Class
Designation of Regular Interest Principal Balance of Regular
Certificate Classes Interest Certificate Classes
------------------------------- -----------------------------
Class A-1 $ 78,000,000
Class A-2 $347,000,000
Class A-3 $158,000,000
Class A-AB $ 76,000,000
Class A-4 $809,525,000
Class A-1A $172,322,000
Class A-M $234,407,000
Class A-J $187,526,000
Class B $ 20,510,000
Class C $ 32,231,000
Class D $ 29,301,000
Class E $ 23,441,000
Class F $ 29,301,000
Class G $ 26,371,000
Class H $ 23,440,000
Class J $ 14,651,000
Class K $ 20,510,000
Class L $ 8,790,000
Class M $ 5,861,000
Class N $ 8,790,000
Class P $ 2,930,000
Class Q $ 5,860,000
Class S $ 5,860,000
Class T $ 23,441,538
Class X-CL (1)
Class X-CP (2)
----------
(1) The Class X-CL Certificates will not have a Class Principal Balance and
will not entitle their Holders to receive distributions of principal. The
Class X-CL Certificates will have a Class Notional Amount which will be
equal to the aggregate of the Component Notional Amounts of the Class X-XX
XXXXX III Components from time to time. As more specifically provided
herein, interest in respect of the Class X-CL Certificates will consist of
the aggregate amount of interest accrued on the respective Component
Notional Amounts of the Class X-XX XXXXX III Components from time to time.
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(2) The Class X-CP Certificates will not have a Class Principal Balance and
will not entitle their Holders to receive distributions of principal. The
Class X-CP Certificates will have a Class Notional Amount which will be
equal to the aggregate of the Component Notional Amounts of the Class X-CP
REMIC III Components from time to time. As more specifically provided
herein, interest in respect of the Class X-CP Certificates will consist of
the aggregate amount of interest accrued on the respective Component
Notional Amounts of the Class X-CP REMIC III Components from time to time.
As provided herein, the Trustee shall take all actions necessary to
ensure that the portion of the Trust Fund consisting of the Grantor Trust
Assets, if any, maintains its status as a grantor trust under the Code. The
Class V Certificates (if issued in accordance with Section 2.05) will represent
the entire beneficial ownership of the Grantor Trust Assets. Notwithstanding the
foregoing, however, if the Trust Fund does not include ARD Trust Mortgage Loans,
then there will be no Grantor Trusts, the Class V Certificates will not be
issued and the provisions of Section 2.05(b) will apply.
The Initial Pool Balance will be $2,344,068,539.
There exists one Trust Mortgage Loan (the "200 Park Avenue Trust
Mortgage Loan"), with a Cut-off Date Balance of $285,131,898, that is evidenced
by a Mortgage Note designated as the Second Amended and Restated Promissory Note
A-2 and is, together with the two (2) other mortgage loans that will not be part
of the Trust Fund (such two (2) other mortgage loans, collectively, the "200
Park Avenue Non-Trust Mortgage Loans"), secured on a collective basis by the
same Mortgage encumbering the property identified on the Trust Mortgage Loan
Schedule as 000 Xxxx Xxxxxx (the "200 Park Avenue Mortgaged Property"). The 000
Xxxx Xxxxxx Non-Trust Mortgage Loans consist of: (i) one mortgage loan (the "200
Park Avenue Note A-1 Non-Trust Mortgage Loan") that has an unpaid principal
balance as of the Cut-off Date of $329,736,204, is evidenced by a Mortgage Note
designated as the Second Amended and Restated Promissory Note A-1 and is, as of
the Closing Date, together with various other commercial and multifamily
mortgage loans, included in a commercial mortgage securitization (the "LB-UBS
Series 2005-C3_Securitization") involving the issuance of the LB-UBS Commercial
Mortgage Trust 2005-C3, Commercial Mortgage Pass-Through Certificates, Series
2005-C3 (the "LB-UBS Series 2005-C3 Certificates"); and (ii) an additional
mortgage loan (the "200 Park Avenue Note A-3 Non-Trust Mortgage Loan") that has
an unpaid principal balance as of the Cut-off Date of $285,131,898, is evidenced
by a Mortgage Note designated as the Second Amended and Restated Promissory Note
A-3 and is, as of the Closing Date, held by an Affiliate of the Depositor. The
000 Xxxx Xxxxxx Trust Mortgage Loan and the 000 Xxxx Xxxxxx Non-Trust Mortgage
Loans collectively constitute the "200 Park Avenue Loan Combination" (which term
shall include any group of successor REO Mortgage Loans or other comparable
deemed mortgage loans with respect to those three (3) Mortgage Loans).
The relative rights of the respective lenders in respect of the 000
Xxxx Xxxxxx Loan Combination are set forth in a co-lender agreement dated as of
June 13, 2005 (as amended, restated, supplemented or otherwise modified from
time to time, the "200 Park Avenue Co-Lender Agreement"), between the holder of
the Mortgage Note for the 000 Xxxx Xxxxxx Trust Mortgage Loan and the respective
holders of the Mortgage Notes for the 000 Xxxx Xxxxxx Xxx-Xxxxx Mortgage Loans.
As of the Closing Date, the entire 000 Xxxx Xxxxxx Loan Combination is to be
serviced and administered in accordance with a pooling and servicing agreement,
dated as of June 13, 2005 (together with any successor servicing agreement
provided for under the 000 Xxxx Xxxxxx Xx-Xxxxxx Agreement, as any such
servicing agreement may be amended, restated, supplemented or otherwise modified
from time to
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time, the "200 Park Avenue Servicing Agreement"), between Structured Asset
Securities Corporation II, as depositor, Xxxxx Fargo Bank, National Association,
as master servicer (in such capacity, and together with any successor master
servicers in respect of the 000 Xxxx Xxxxxx Loan Combination, the "200 Park
Avenue Master Servicer"), X.X. Xxxxxx Company, Inc., as special servicer (in
such capacity, and together with any successor special servicers in respect of
the 000 Xxxx Xxxxxx Loan Combination, the "200 Park Avenue Special Servicer"),
LaSalle Bank National Association, as trustee (in such capacity, and together
with any successor trustees under such pooling and servicing agreement, the "200
Park Avenue Trustee") and ABN AMRO Bank N.V., as fiscal agent.
There exists one Trust Mortgage Loan (the "Courtyard by Marriott Trust
Mortgage Loan"), with a Cut-off Date Balance of $177,900,000, that is evidenced
by a Mortgage Note designated as Promissory Note (Replacement Note A-2) and is,
together with three (3) other mortgage loans that will not be part of the Trust
Fund (such three (3) other mortgage loans, collectively, the "Courtyard by
Marriott Non-Trust Mortgage Loans"), secured on a collective basis by the same
Mortgage encumbering the properties collectively identified on the Trust
Mortgage Loan Schedule as Courtyard by Marriott Portfolio (collectively, the
"Courtyard by Marriott Mortgaged Property"). The Courtyard by Marriott Non-Trust
Mortgage Loans consist of: (i) one (1) mortgage loan (the "Courtyard by Marriott
Note A-1 Mortgage Loan") that has an unpaid principal balance as of the Cut-off
Date of $164,200,000, is evidenced by a Mortgage Note designated as Promissory
Note (Replacement Note A-1), consists of two (2) loan components and is, as of
the Closing Date, together with various other commercial and multifamily
mortgage loans, included in the LB-UBS Series 2005-C3 Securitization, which
involves the issuance of the LB-UBS Series 2005-C3 Certificates; (ii) one (1)
mortgage loan (the "Courtyard by Marriott Note A-3 Non-Trust Mortgage Loan")
that has an unpaid principal balance as of the Cut-off Date of $177,900,000, is
evidenced by a Mortgage Note designated as Promissory Note (Replacement Note
A-3) and is, as of the Closing Date, held by an Affiliate of the Depositor; and
(iii) one (1) mortgage loan (the "Courtyard by Marriott Note B Non-Trust
Mortgage Loan") that has an unpaid principal balance as of the Cut-off Date of
$30,000,000, is evidenced by a Mortgage Note designated as Promissory Note
(Replacement Note B) and is, as of the Closing Date, held by an Affiliate of the
Depositor. The Courtyard by Marriott Trust Mortgage Loan and the Courtyard by
Marriott Non-Trust Mortgage Loans collectively constitute the "Courtyard by
Marriott Loan Combination" (which term shall include any group of successor REO
Mortgage Loans or comparable deemed mortgage loans with respect to those four
(4) Mortgage Loans).
The relative rights of the respective lenders in respect of the
Courtyard by Marriott Loan Combination are set forth in a co-lender agreement
dated as of June 13, 2005 (as amended, restated, supplemented or otherwise
modified from time to time, the "Courtyard by Marriott Co-Lender Agreement"),
between the holder of the Mortgage Note for the Courtyard by Marriott Trust
Mortgage Loan and the respective holders of the Mortgage Notes for the Courtyard
by Marriott Non-Trust Mortgage Loans. As of the Closing Date, the entire
Courtyard by Marriott Loan Combination is to be serviced and administered in
accordance with a pooling and servicing agreement, dated as of June 13, 2005
(together with any successor servicing agreement provided for under the
Courtyard by Marriott Co-Lender Agreement, as any such servicing agreement may
be amended, restated, supplemented or otherwise modified from time to time, the
"Courtyard by Marriott Servicing Agreement"), between Structured Asset
Securities Corporation II, as depositor, Xxxxx Fargo Bank, National Association,
as master servicer (in such capacity, and together with any successor master
servicers in respect of the Courtyard by Marriott Loan Combination, the
"Courtyard by Marriott Master Servicer"), X.X. Xxxxxx Company, Inc., as special
servicer (in such capacity, and together with any successor special servicers in
-6-
respect of the Courtyard by Marriott Loan Combination, the "Courtyard by
Marriott Special Servicer"), LaSalle Bank National Association, as trustee (in
such capacity, and together with any successor trustees under such pooling and
servicing agreement, the "Courtyard by Marriott Trustee") and ABN AMRO Bank
N.V., as fiscal agent.
There exists one Trust Mortgage Loan (the "1345 Avenue of the Americas
Trust Mortgage Loan"), with a Cut-off Date Balance of $46,800,000, that is
evidenced by a Mortgage Note designated as Note 1-A2 and is, together with ten
(10) other mortgage loans that will not be part of the Trust Fund (such ten (10)
other mortgage loans, collectively, the "1345 Avenue of the Americas Non-Trust
Mortgage Loans"), secured on a collective basis by the same Mortgage encumbering
the property identified on the Trust Mortgage Loan Schedule as 1345 Avenue of
the Americas (the "1345 Avenue of the Americas Mortgaged Property"). The 1345
Avenue of the Americas Non-Trust Mortgage Loans consist of: (i) one (1) mortgage
loan (the "1345 Avenue of the Americas Note 1-A1 Non-Trust Mortgage Loan") that
has an unpaid principal balance as of the Cut-off Date of $46,800,000 and is
evidenced by a Mortgage Note designated as Note 1-A1; (ii) one (1) mortgage loan
(the "1345 Avenue of the Americas Note 1-A3 Non-Trust Mortgage Loan") that has
an unpaid principal balance as of the Cut-off Date of $169,193,977 and is
evidenced by a Mortgage Note designated as Note 1-A3; (iii) one (1) mortgage
loan (the "1345 Avenue of the Americas Note 1-A4 Non-Trust Mortgage Loan") that
has an unpaid principal balance as of the Cut-off Date of $169,193,977 and is
evidenced by a Mortgage Note designated as Note 1-A4; (iv) one (1) mortgage loan
(the "1345 Avenue of the Americas Note 2 Non-Trust Mortgage Loan") that has an
unpaid principal balance as of the Cut-off Date of $100,000,000, is evidenced by
a Mortgage Note designated as Note 2 and consists of two (2) loan components;
and (v) six (6) other mortgage loans (collectively, the "1345 Avenue of the
Americas Note 1-B/C Non-Trust Mortgage Loans") that have an aggregate unpaid
principal balance as of the Cut-off Date of $198,012,046, are evidenced by
Mortgage Notes designated as Note 1-B1, Note 1-B2, Note 1-C1, Note 1-C2, Note
1-C3 and Note 1-C4 respectively. The 1345 Avenue of the Americas Trust Mortgage
Loan and the 1345 Avenue of the Americas Non-Trust Mortgage Loans collectively
constitute the "1345 Avenue of the Americas Loan Combination" (which term shall
include any group of successor REO Mortgage Loans or comparable deemed mortgage
loans with respect to those 11 Mortgage Loans). The 1345 Avenue of the Americas
Note 1-A3 Non-Trust Mortgage Loan, the 1345 Avenue of the Americas Note 1-A4
Non-Trust Mortgage Loan and two (2) of the 1345 Avenue of the Americas Note
1-B/C Non-Trust Mortgage Loans are included in a commercial mortgage
securitization (the "Series FB 2005-1 Securitization") involving the issuance of
the 1345 Avenue of the Americas and Park Avenue Plaza Trust, Commercial Mortgage
Pass-Through Certificates, Series FB 0000-0 (xxx "Xxxxxx XX 0000-0
Xxxxxxxxxxxx"). The other 1345 Avenue of the Americas Non-Trust Mortgage Loans
are held by third party institutional investors.
The relative rights of the respective lenders in respect of the 1345
Avenue of the Americas Loan Combination are set forth in a co-lender agreement
dated as of July 6, 2005 (as amended, restated, supplemented or otherwise
modified from time to time, the "1345 Avenue of the Americas Co-Lender
Agreement"), between the holder of the Mortgage Note for the 1345 Avenue of the
Americas Trust Mortgage Loan and the respective holders of the Mortgage Notes
for the 1345 Avenue of the Americas Non-Trust Mortgage Loans. As of the Closing
Date, the entire 1345 Avenue of the Americas Loan Combination is to be serviced
and administered in accordance with a pooling and servicing agreement, dated as
of August 25, 2005 (together with any successor servicing agreement provided for
under the 1345 Avenue of the Americas Co-Lender Agreement, as any such servicing
agreement may be amended, restated, supplemented or otherwise modified from time
to time, the "1345
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Avenue of the Americas Servicing Agreement"), between Xxxxxx Xxxxxxx Capital I
Inc., as depositor, Xxxxx Fargo Bank, National Association, as master servicer
(in such capacity, and together with any successor master servicers in respect
of the 1345 Avenue of the Americas Loan Combination, the "1345 Avenue of the
Americas Master Servicer"), Xxxxx Fargo Bank, National Association, as special
servicer (in such capacity, and together with any successor special servicers in
respect of the 1345 Avenue of the Americas Loan Combination, the "1345 Avenue of
the Americas Special Servicer"), LaSalle Bank National Association, as trustee
(in such capacity, and together with any successor trustees under such pooling
and servicing agreement, the "1345 Avenue of the Americas Trustee") and ABN AMRO
Bank N.V., as fiscal agent.
There exists one Trust Mortgage Loan (the "Park Avenue Plaza Trust
Mortgage Loan"), with a Cut-off Date Balance of $19,350,000, that is evidenced
by a Mortgage Note designated as Note 1-A2 and is, together with six (6) other
mortgage loans that will not be part of the Trust Fund (such six (6) other
mortgage loans, collectively, the "Park Avenue Plaza Non-Trust Mortgage Loans"),
secured on a collective basis by the same Mortgage encumbering the property
identified on the Trust Mortgage Loan Schedule as Park Avenue Plaza (the "Park
Avenue Plaza Mortgaged Property"). The Park Avenue Plaza Non-Trust Mortgage
Loans consist of: (i) one (1) mortgage loan (the "Park Avenue Plaza Note 1-A1
Non-Trust Mortgage Loan") that has an unpaid principal balance as of the Cut-off
Date of $19,350,000 and is evidenced by a Mortgage Note designated as Note 1-A1;
(ii) one (1) mortgage loan (the "Park Avenue Plaza Note 1-A3 Non-Trust Mortgage
Loan") that has an unpaid principal balance as of the Cut-off Date of
$55,494,045 and is evidenced by a Mortgage Note designated as Note 1-A3; (iii)
one (1) mortgage loan (the "Park Avenue Plaza Note 1-A4 Non-Trust Mortgage
Loan") that has an unpaid principal balance as of the Cut-off Date of
$55,494,045 and is evidenced by a Mortgage Note designated as Note 1-A4; (iv)
one (1) mortgage loan (the "Park Avenue Plaza Note 2 Non-Trust Mortgage Loan")
that has an unpaid principal balance as of the Cut-off Date of $100,000,000 and
is evidenced by a Mortgage Note designed as Note 2; and (v) two (2) other
mortgage loans (together, the "Park Avenue Plaza Note 1-B Non-Trust Mortgage
Loans") that have an aggregate principal balance as of the Cut-off Date of
$1,311,910, and are evidenced by Mortgage Notes designated as Note 1-B1 and Note
1-B2, respectively. The Park Avenue Plaza Trust Mortgage Loan and the Park
Avenue Plaza Non-Trust Mortgage Loans collectively constitute the "Park Avenue
Plaza Loan Combination" (which term shall include any group of successor REO
Mortgage Loans or comparable deemed mortgage loans with respect to those seven
(7) Mortgage Loans). The Park Avenue Plaza Non-Trust Mortgage Loans (other than
the Park Avenue Plaza Note 1-A1 Non-Trust Mortgage Loan and the Park Avenue
Plaza Note 2 Non-Trust Mortgage Loan) are included in the Series FB 2005-1
Securitization involving the issuance of the Series FB 2005-1 Certificates. The
Park Avenue Plaza Note 1-A1 Non-Trust Mortgage Loan and the Park Avenue Plaza
Note 2 Non-Trust Mortgage Loan are held by third party institutional investors.
The relative rights of the respective lenders in respect of the Park
Avenue Plaza Loan Combination are set forth in a co-lender agreement dated as of
July 25, 2005 (as amended, restated, supplemented or otherwise modified from
time to time, the "Park Avenue Plaza Co-Lender Agreement"), between the holder
of the Mortgage Note for the Park Avenue Plaza Trust Mortgage Loan and the
respective holders of the Mortgage Notes for the Park Avenue Plaza Non-Trust
Mortgage Loans. As of the Closing Date, the entire Park Avenue Plaza Loan
Combination is to be serviced and administered in accordance with a pooling and
servicing agreement, dated as of August 25, 2005 (together with any successor
servicing agreement provided for under the Park Avenue Plaza Co-Lender
Agreement, as any such servicing agreement may be amended, restated,
supplemented or otherwise modified from time to time, the "Park Avenue Plaza
Servicing Agreement"), between Xxxxxx Xxxxxxx
-8-
Capital I Inc., as depositor, Xxxxx Fargo Bank, National Association, as master
servicer (in such capacity, and together with any successor master servicers in
respect of the Park Avenue Plaza Loan Combination, the "Park Avenue Plaza Master
Servicer"), Xxxxx Fargo Bank, National Association, as special servicer (in such
capacity, and together with any successor special servicers in respect of the
Park Avenue Plaza Loan Combination, the "Park Avenue Plaza Special Servicer"),
LaSalle Bank National Association, as trustee (in such capacity, and together
with any successor trustees under such pooling and servicing agreement, the
"Park Avenue Plaza Trustee") and ABN AMRO Bank N.V., as fiscal agent.
There exist another ten (10) Trust Mortgage Loans (each, a "Serviced
Note A Trust Mortgage Loan") that, in each case, is evidenced by a mortgage note
designated as Note A and is, together with one (1) other mortgage loan that will
not be part of the Trust Fund (each such other mortgage loan, a "Serviced Note B
Non-Trust Mortgage Loan"), secured on a collective basis by the same Mortgage
encumbering the related property identified in the table following this
paragraph (each property identified in such table, an "A/B Mortgaged Property").
The Serviced Note A Trust Mortgage Loan and Serviced Note B Non-Trust Mortgage
Loan that are secured by the same Mortgage on a particular A/B Mortgaged
Property will, together, constitute a "Serviced A/B Loan Combination" (which
term shall include any pair of successor REO Mortgage Loans with respect to
those two (2) mortgage loans). The relative rights of the respective lenders in
respect of each Serviced A/B Loan Combination are set forth in a co-lender
agreement dated as of a date in August 2005 (each such co-lender agreement, as
amended, restated, supplemented or otherwise modified from time to time, an "A/B
Co-Lender Agreement"), between the holder of the Mortgage Note for the Serviced
Note A Trust Mortgage Loan comprising such Serviced A/B Loan Combination and the
holder of the Mortgage Note for the Serviced Note B Non-Trust Mortgage Loan
comprising such Serviced A/B Loan Combination. From and after the Closing Date,
each Serviced A/B Loan Combination is to be serviced and administered in
accordance with this Agreement. The table below identifies each Serviced A/B
Loan Combination by name of the related Mortgaged Property, the Cut-off Date
Balance of each Serviced Note A Trust Mortgage Loan and Serviced Note B
Non-Trust Mortgage Loan included in the subject Serviced A/B Loan Combination
and the holder of the Serviced Note B Non-Trust Mortgage Loan included in the
subject Serviced A/B Loan Combination.
SERVICED A/B LOAN COMBINATIONS
<TABLE>
CUT-OFF DATE BALANCE OF CUT-OFF DATE BALANCE OF HOLDER OF SERVICED
NAME OF A/B SERVICED NOTE A TRUST SERVICED NOTE B NON-TRUST NOTE B NON-TRUST MORTGAGE
MORTGAGED PROPERTY(1) MORTGAGE LOAN MORTGAGE LOAN LOAN(2)
----------------------- ----------------------- ------------------------- -------------------------
000 Xxxx Xxxxxxx Xxxxxx $220,000,000 $25,000,000 Affiliate of Depositor
Polo Towne Center $ 23,600,000 $ 1,475,000 Affiliate of Depositor
Fairfax Junction $ 13,425,000 $ 635,000 Affiliate of Depositor
Star Plaza $ 10,060,000 $ 785,000 Affiliate of Depositor
XxXxxxxxx $ 9,870,000 $ 705,000 Affiliate of Depositor
Kiln Creek $ 8,140,000 $ 615,000 Affiliate of Depositor
Centre Court $ 7,720,000 $ 525,000 Affiliate of Depositor
401 Xxxxxxxxx $ 6,880,000 $ 387,500 Affiliate of Depositor
Ulster Terrace $ 6,565,000 $ 515,000 Affiliate of Depositor
Lexington Commons $ 5,475,000 $ 135,000 Affiliate of Depositor
</TABLE>
----------
-9-
(1) Reflects property identified by that name on the Trust Mortgage Loan
Schedule.
(2) As of Closing Date.
Accordingly, as and to the extent provided herein, (i) the 000 Xxxx
Xxxxxx Trust Mortgage Loan, although part of the Trust Fund, will be serviced
and administered in accordance with the 000 Xxxx Xxxxxx Servicing Agreement, by
the 000 Xxxx Xxxxxx Master Servicer and the 000 Xxxx Xxxxxx Special Servicer,
(ii) the Courtyard by Marriott Trust Mortgage Loan, although part of the Trust
Fund, will be serviced and administered in accordance with the Courtyard by
Marriott Servicing Agreement, by the Courtyard by Marriott Master Servicer and
the Courtyard by Marriott Special Servicer, (iii) the 1345 Avenue of the
Americas Trust Mortgage Loan, although part of the Trust Fund, will be serviced
and administered in accordance with the 1345 Avenue of the Americas Servicing
Agreement, by the 1345 Avenue of the Americas Master Servicer and the 1345
Avenue of the Americas Special Servicer, and (iv) the Park Avenue Plaza Trust
Mortgage Loan, although part of the Trust Fund, will be serviced and
administered in accordance with the Park Avenue Plaza Servicing Agreement, by
the Park Avenue Plaza Master Servicer and the Park Avenue Plaza Special
Servicer. The Serviced Note B Non-Trust Mortgage, although not part of the Trust
Fund, will be serviced hereunder by the Master Servicer and the Special
Servicer.
Capitalized terms used but not otherwise defined in this Preliminary
Statement have the respective meanings assigned thereto in Section 1.01 of this
Agreement.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent hereby agree, in each case, as follows:
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ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES;
CERTAIN ADJUSTMENTS TO THE PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, unless the context otherwise requires:
"30/360 Basis" shall mean the accrual of interest calculated on the
basis of a 360-day year consisting of twelve 30-day months.
"200 Park Avenue Co-Lender Agreement" shall have the meaning assigned
thereto in the Preliminary Statement.
"200 Park Avenue Collection Period" shall mean, with respect to any
Trust Master Servicer Remittance Date or any Distribution Date, the period
commencing on the day immediately following the 000 Xxxx Xxxxxx Determination
Date in the calendar month preceding the calendar month in which such Trust
Master Servicer Remittance Date or such Distribution Date, as the case may be,
occurs (or, in the case of each of the initial Trust Master Servicer Remittance
Date and the initial Distribution Date, commencing immediately following the
Cut-off Date) and ending on and including the 000 Xxxx Xxxxxx Determination Date
in the calendar month in which such Trust Master Servicer Remittance Date or
such Distribution Date, as the case may be, occurs.
"200 Park Avenue Determination Date" shall mean the "Remittance Date"
under the 000 Xxxx Xxxxxx Xx-Xxxxxx Agreement.
"200 Park Avenue Loan Combination" shall have the meaning assigned
thereto in the Preliminary Statement.
"200 Park Avenue Master Servicer" shall have the meaning assigned
thereto in the Preliminary Statement.
"200 Park Avenue Mortgage Loan" shall mean the 000 Xxxx Xxxxxx Trust
Mortgage Loan or a 000 Xxxx Xxxxxx Xxx-Xxxxx Mortgage Loan, as applicable.
"200 Park Avenue Mortgaged Property" shall have the meaning assigned
thereto in the Preliminary Statement.
"200 Park Avenue Non-Trust Mortgage Loan Noteholder" shall mean the
holder (or, if applicable, the collective holders) of the Mortgage Note for a
000 Xxxx Xxxxxx Non-Trust Mortgage Loan.
"200 Park Avenue Non-Trust Mortgage Loans" shall have the meaning
assigned thereto in the Preliminary Statement.
-11-
"200 Park Avenue Note A-1 Non-Trust Mortgage Loan" shall have the
meaning assigned thereto in the Preliminary Statement.
"200 Park Avenue Note A-1 Non-Trust Mortgage Loan Noteholder" shall
mean the holder (or, if applicable, the collective holders) of the Mortgage Note
for the 000 Xxxx Xxxxxx Note A-1 Non-Trust Mortgage Loan.
"200 Park Avenue Note A-3 Non-Trust Mortgage Loan" shall have the
meaning assigned thereto in the Preliminary Statement.
"200 Park Avenue Note A-3 Non-Trust Mortgage Loan Noteholder" shall
mean the holder (or, if applicable, the collective holders) of the Mortgage Note
for the 000 Xxxx Xxxxxx Note A-3 Non-Trust Mortgage Loan.
"200 Park Avenue Noteholders" shall mean the holder of the Mortgage
Note for the 000 Xxxx Xxxxxx Trust Mortgage Loan, together with the 000 Xxxx
Xxxxxx Xxx-Xxxxx Mortgage Loan Noteholders.
"200 Park Avenue Servicer" shall mean the 000 Xxxx Xxxxxx Master
Servicer or the 000 Xxxx Xxxxxx Special Servicer, as applicable.
"200 Park Avenue Servicing Agreement" shall have the meaning assigned
thereto in the Preliminary Statement.
"200 Park Avenue Special Servicer" shall have the meaning assigned
thereto in the Preliminary Statement.
"200 Park Avenue Trust Mortgage Loan" shall have the meaning assigned
thereto in the Preliminary Statement, which Trust Mortgage Loan is identified on
the Trust Mortgage Loan Schedule by loan number 1 and is, together with the 000
Xxxx Xxxxxx Xxx-Xxxxx Mortgage Loans, secured by the same Mortgage on the 000
Xxxx Xxxxxx Mortgaged Property.
"200 Park Avenue Trustee" shall have the meaning assigned thereto in
the Preliminary Statement.
"200 Park Avenue Underlying Collection Period" shall mean, with
respect to any Distribution Date or Trust Master Servicer Remittance Date, the
"Loan Combination Collection Period" (within the meaning of the initial 000 Xxxx
Xxxxxx Servicing Agreement) with respect to the 000 Xxxx Xxxxxx Loan Combination
that ends in the calendar month in which such Distribution Date or Trust Master
Servicer Remittance Date, as the case may be, occurs.
"500 West Madison Change of Control Event" shall mean any Serviced
Loan Combination Change of Control Event with respect to the 000 Xxxx Xxxxxxx
Loan Combination.
"500 West Madison Co-Lender Agreement" shall mean the Co-Lender
Agreement dated as of August 11, 2005, between Xxxxxx Brothers Bank, FSB as
holder of the Mortgage Note for the 000 Xxxx Xxxxxxx Trust Mortgage Loan and
Xxxxxx Brothers Bank, FSB as holder of the Mortgage Note for the 000 Xxxx
Xxxxxxx Note B Non-Trust Mortgage Loan.
-12-
"500 West Madison Collection Period" shall mean, with respect to any
000 Xxxx Xxxxxxx Master Servicer Remittance Date, any Trust Master Servicer
Remittance Date or any Distribution Date, the period commencing on the day
immediately following the 000 Xxxx Xxxxxxx Determination Date in the calendar
month preceding the month in which such 000 Xxxx Xxxxxxx Master Servicer
Remittance Date, such Trust Master Servicer Remittance Date or such Distribution
Date, as the case may be, occurs (or, in the case of each of the initial 000
Xxxx Xxxxxxx Master Servicer Remittance Date, the initial Trust Master Servicer
Remittance Date or the initial Distribution Date, commencing immediately
following the Cut-off Date) and ending on and including the 000 Xxxx Xxxxxxx
Determination Date in the calendar month in which such 000 Xxxx Xxxxxxx Master
Servicer Remittance Date, such Trust Master Servicer Remittance Date or such
Distribution Date, as the case may be, occurs.
"500 West Madison Controlling Party" shall mean the Serviced Loan
Combination Controlling Party with respect to the 000 Xxxx Xxxxxxx Loan
Combination.
"500 West Madison Cure Rights" shall mean the Cure Rights granted to
the 000 Xxxx Xxxxxxx Note B Non-Trust Mortgage Loan Noteholder under Article VII
of the 000 Xxxx Xxxxxxx Co-Lender Agreement.
"500 West Madison Determination Date" shall have the same meaning as
Trust Determination Date.
"500 West Madison Directing Lender" shall mean the Serviced Loan
Combination Directing Lender with respect to the 000 Xxxx Xxxxxxx Loan
Combination.
"500 West Madison Loan Combination" shall mean the Serviced Loan
Combination consisting of the 000 Xxxx Xxxxxxx Trust Mortgage Loan and the 000
Xxxx Xxxxxxx Note B Non-Trust Mortgage Loan (or any successor REO Mortgage Loans
with respect thereto).
"500 West Madison Master Servicer Remittance Date" shall have the same
meaning as Trust Master Servicer Remittance Date.
"500 West Madison Mortgage Loan" shall mean the 000 Xxxx Xxxxxxx Trust
Mortgage Loan or the 000 Xxxx Xxxxxxx Note B Non-Trust Mortgage Loan, as
applicable.
"500 West Madison Mortgaged Property" shall mean the Mortgaged
Property identified on the Trust Mortgage Loan Schedule as 000 Xxxx Xxxxxxx
Xxxxxx.
"500 West Madison Note B Non-Trust Mortgage Loan" shall mean the
mortgage loan that is, together with the 000 Xxxx Xxxxxxx Trust Mortgage Loan,
secured by the same Mortgage on the 000 Xxxx Xxxxxxx Mortgaged Property.
"500 West Madison Note B Non-Trust Mortgage Loan Noteholder" shall
mean the holder (or the collective holders) of the Mortgage Note for the 000
Xxxx Xxxxxxx Note B Non-Trust Mortgage Loan.
"500 West Madison Noteholders" shall mean the holder of the Mortgage
Note for the 000 Xxxx Xxxxxxx Trust Mortgage Loan, together with the 000 Xxxx
Xxxxxxx Note B Non-Trust Mortgage Loan Noteholder.
-13-
"500 West Madison Special Servicer" shall mean any special servicer
hereunder responsible for special servicing the 000 Xxxx Xxxxxxx Loan
Combination or any related REO Property; provided that, if such special servicer
has special servicing responsibilities with respect to other Serviced Mortgage
Loans and/or Administered REO Properties, then the term 000 Xxxx Xxxxxxx Special
Servicer shall refer to such party only to the extent of its rights, duties and
obligations in respect of the 000 Xxxx Xxxxxxx Loan Combination or any related
REO Property.
"500 West Madison Trust Mortgage Loan" shall mean the Trust Mortgage
Loan that is secured by the 000 Xxxx Xxxxxxx Mortgaged Property and that is
identified on the Trust Mortgage Loan Schedule by loan number 3.
"1345 Avenue of the Americas Co-Lender Agreement" shall have the
meaning assigned thereto in the Preliminary Statement.
"1345 Avenue of the Americas Collection Period" shall mean, with
respect to any Trust Master Servicer Remittance Date or any Distribution Date,
the period commencing on the day immediately following the 1345 Avenue of the
Americas Determination Date in the calendar month preceding the calendar month
in which such Trust Master Servicer Remittance Date or such Distribution Date,
as the case may be, occurs (or, in the case of each of the initial Trust Master
Servicer Remittance Date and the initial Distribution Date, commencing
immediately following the Cut-off Date) and ending on and including the 1345
Avenue of the Americas Determination Date in the calendar month in which such
Trust Master Servicer Remittance Date or such Distribution Date, as the case may
be, occurs.
"1345 Avenue of the Americas Determination Date" shall mean the
"Business Day" (within the meaning of the initial 1345 Avenue of the Americas
Servicing Agreement) following the eighth calendar day of each month, commencing
in September 2005.
"1345 Avenue of the Americas Loan Combination" shall have the meaning
assigned thereto in the Preliminary Statement.
"1345 Avenue of the Americas Master Servicer" shall have the meaning
assigned thereto in the Preliminary Statement.
"1345 Avenue of the Americas Mortgage Loan" shall mean the 1345 Avenue
of the Americas Trust Mortgage Loan or any 1345 Avenue of the Americas Non-Trust
Mortgage Loan, as applicable.
"1345 Avenue of the Americas Mortgaged Property" shall have the
meaning assigned thereto in the Preliminary Statement.
"1345 Avenue of the Americas Non-Trust Mortgage Loan Noteholder" shall
mean the holder (or, if applicable, the collective holders) of the Mortgage Note
for the 1345 Avenue of the Americas Non-Trust Mortgage Loan.
"1345 Avenue of the Americas Non-Trust Mortgage Loans" shall have the
meaning assigned thereto in the Preliminary Statement.
-14-
"1345 Avenue of the Americas Note 1-A1 Non-Trust Mortgage Loan" shall
have the meaning assigned thereto in the Preliminary Statement.
"1345 Avenue of the Americas Note 1-A1 Non-Trust Mortgage Loan
Noteholder" shall mean the holder (or, if applicable, the collective holders) of
the Mortgage Note for the 1345 Avenue of the Americas Note 1-A1 Non-Trust
Mortgage Loan.
"1345 Avenue of the Americas Note 1-A3 Non-Trust Mortgage Loan" shall
have the meaning assigned thereto in the Preliminary Statement.
"1345 Avenue of the Americas Note 1-A3 Non-Trust Mortgage Loan
Noteholder" shall mean the holder (or, if applicable, the collective holders) of
the Mortgage Note for the 1345 Avenue of the Americas Note 1-A3 Non-Trust
Mortgage Loan.
"1345 Avenue of the Americas Note 1-A4 Non-Trust Mortgage Loan" shall
have the meaning assigned thereto in the Preliminary Statement.
"1345 Avenue of the Americas Note 1-A4 Non-Trust Mortgage Loan
Noteholder" shall mean the holder (or, if applicable, the collective holders) of
the Mortgage Note for the 1345 Avenue of the Americas Note 1-A4 Non-Trust
Mortgage Loan.
"1345 Avenue of the Americas Note 1-B/C Non-Trust Mortgage Loan
Noteholder" shall mean the holder (or, if applicable, the collective holders) of
the Mortgage Note for a 1345 Avenue of the Americas 1- B/C Non-Trust Mortgage
Loan.
"1345 Avenue of the Americas Note 1-B/C Non-Trust Mortgage Loans"
shall have the meaning assigned thereto in the Preliminary Statement.
"1345 Avenue of the Americas Note 2 Non-Trust Mortgage Loan" shall
have the meaning assigned thereto in the Preliminary Statement.
"1345 Avenue of the Americas Note 2 Non-Trust Mortgage Loan
Noteholder" shall mean the holder (or, if applicable, the collective holders) of
the Mortgage Note for the 1345 Avenue of the Americas Note 2 Non-Trust Mortgage
Loan.
"1345 Avenue of the Americas Noteholders" shall mean, collectively,
the holder of the Mortgage Note for the 1345 Avenue of the Americas Trust
Mortgage Loan, together with the 1345 Avenue of the Americas Non-Trust Mortgage
Loan Noteholders.
"1345 Avenue of the Americas Servicer" shall mean the 1345 Avenue of
the Americas Master Servicer or the 1345 Avenue of the Americas Special
Servicer.
"1345 Avenue of the Americas Servicing Agreement" shall have the
meaning assigned thereto in the Preliminary Statement.
"1345 Avenue of the Americas Special Servicer" shall have the meaning
assigned thereto in the Preliminary Statement.
-15-
"1345 Avenue of the Americas Trust Mortgage Loan" shall have the
meaning assigned thereto in the Preliminary Statement, which Trust Mortgage Loan
is identified on the Trust Mortgage Loan Schedule by loan number 12 and is,
together with the 1345 Avenue of the Americas Non-Trust Mortgage Loans, secured
by the same Mortgage on the 1345 Avenue of the Americas Mortgaged Property.
"1345 Avenue of the Americas Trustee" shall have the meaning assigned
thereto in the Preliminary Statement.
"1345 Avenue of the Americas Underlying Collection Period" shall mean,
with respect to any Distribution Date or Trust Master Servicer Remittance Date,
the "Due Period" (within the meaning of the initial 1345 Avenue of the Americas
Servicing Agreement) with respect to the 1345 Avenue of the Americas Loan
Combination that ends in the calendar month in which such Distribution Date or
Trust Master Servicer Remittance Date, as the case may be, occurs.
"A/B Co-Lender Agreement" shall have the meaning assigned thereto in
the Preliminary Statement.
"A/B Mortgaged Property" shall have the meaning assigned thereto in
the Preliminary Statement.
"ABN AMRO" shall mean ABN AMRO Bank N.V. or its successor in interest.
"Acceptable Insurance Default" shall mean, with respect to any
Mortgage Loan, any default under the related loan documents resulting from (a)
the exclusion of acts of terrorism from coverage under the related all risk
casualty insurance policy maintained on the subject Mortgaged Property and (b)
the related Mortgagor's failure to obtain insurance that specifically covers
acts of terrorism, but only if the Special Servicer has determined, in its
reasonable judgment (subject to Section 6.11 and/or Section 6.12, in each case
if and as applicable), that (i) such insurance is not available at commercially
reasonable rates and the subject hazards are not commonly insured against at the
time for real properties similar to the subject Mortgaged Property and located
in and around the region in which the subject Mortgaged Property is located, or
(ii) such insurance is not available at any rate. Subject to the Servicing
Standard, in making any of the determinations under and in accordance with
subclause (i) or (ii) of this definition, the Special Servicer shall be entitled
to reasonably rely on the opinion of an insurance consultant.
"Accrued Certificate Interest" shall mean the interest accrued from
time to time with respect to any Class of Regular Interest Certificates, the
amount of which interest shall equal: (a) in the case of any Class of Principal
Balance Certificates for any Interest Accrual Period, one-twelfth of the product
of (i) the annual Pass-Through Rate applicable to such Class of Certificates for
such Interest Accrual Period, multiplied by (ii) the Class Principal Balance of
such Class of Certificates outstanding immediately prior to the related
Distribution Date; and (b) in the case of either Class of Interest-Only
Certificates for any Interest Accrual Period, the aggregate amount of Accrued
Component Interest with respect to all of the REMIC III Components of such Class
of Certificates for such Interest Accrual Period. The Regular Interest
Certificates shall accrue interest on a 30/360 Basis.
"Accrued Component Interest" shall mean the interest accrued from time
to time with respect to any REMIC III Component of either Class of Interest-Only
Certificates, the amount of which
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interest shall equal, for any Interest Accrual Period, one-twelfth of the
product of (i) the annual Pass-Through Rate applicable to such REMIC III
Component for such Interest Accrual Period, multiplied by (ii) the Component
Notional Amount of such REMIC III Component outstanding immediately prior to the
related Distribution Date. Each REMIC III Component of a Class of Interest-Only
Certificates shall accrue interest on a 30/360 Basis.
"Acquisition Date" shall mean, with respect to any REO Property, the
first day on which such REO Property or any interest therein is considered to be
acquired by (or, in the case of an Outside Administered REO Property, acquired
for the benefit of) the Trust Fund within the meaning of Treasury regulations
section 1.856-6(b)(1), which shall be the first day on which the Trust Fund is
treated as the owner of such REO Property or an interest therein for federal
income tax purposes.
"Actual/360 Basis" shall mean the accrual of interest calculated on
the basis of the actual number of days elapsed during any interest accrual
period in a year assumed to consist of 360 days.
"Additional Designated Servicing Information" shall have the meaning
assigned thereto in Section 8.15(a).
"Additional Information" shall have the meaning assigned thereto in
Section 4.02(a).
"Additional Interest" shall mean, with respect to any ARD Mortgage
Loan after its Anticipated Repayment Date, subject to Section 2.05(b), all
interest accrued on the principal balance of such ARD Mortgage Loan at the
Additional Interest Rate and, if so provided in the related loan documents,
compounded at the related Mortgage Rate (the payment of which interest shall,
under the terms of such ARD Mortgage Loan, be deferred until the entire
outstanding principal balance thereof has been paid). For purposes of this
Agreement, Additional Interest on an ARD Mortgage Loan or any successor REO
Mortgage Loan with respect thereto shall be deemed not to constitute principal
or any portion thereof and shall not be added to the unpaid principal balance or
Stated Principal Balance of such ARD Mortgage Loan or any successor REO Mortgage
Loan with respect thereto, notwithstanding that the terms of the related loan
documents so permit. To the extent that any Additional Interest is not paid on a
current basis, it shall, for purposes of this Agreement, be deemed to be
deferred interest (regardless of whether it is added to principal outstanding
with respect to the related ARD Mortgage Loan in accordance with the related
loan documents).
"Additional Interest Rate" shall mean, with respect to any ARD
Mortgage Loan after its Anticipated Repayment Date, subject to Section 2.05(b),
the incremental increase in the Mortgage Rate for such loan resulting from the
passage of such Anticipated Repayment Date.
"Additional Trust Fund Expense" shall mean any expense that: (i) is
incurred with respect to the Trust Fund or any particular asset therein; (ii) is
not paid by or on behalf of any Mortgagor and is not covered by a
nonreimbursable payment by any party hereto; (iii) is not otherwise included in
the calculation of a Realized Loss in respect of any particular Trust Mortgage
Loan or REO Trust Mortgage Loan; and (iv) would result or has resulted, as the
case may be, in the Holders of Regular Interest Certificates receiving less than
the full amount of principal and/or Distributable Certificate Interest to which
they are entitled on any Distribution Date.
"Adjusted Actual/360 Accrued Interest Amount" shall mean, with respect
to any Loan REMIC Regular Interest or REMIC I Regular Interest that relates to
an Interest Reserve Mortgage Loan
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or an Interest Reserve REO Mortgage Loan, for any Interest Accrual Period, an
amount of interest equal to the product of (a) the Mortgage Rate for the related
Trust Mortgage Loan in effect as of the Closing Date (without regard to any
modifications, extensions, waivers or amendments of the related Trust Mortgage
Loan subsequent to the Closing Date and, in the case of an Outside Serviced
Trust Mortgage Loan, reduced by the Actual/360 Equivalent of the related Outside
Servicing Fee Rate), multiplied by (b) a fraction, the numerator of which is the
number of days in such Interest Accrual Period, and the denominator of which is
360, multiplied by (c) the Uncertificated Principal Balance of such Loan REMIC
Regular Interest or REMIC I Regular Interest, as the case may be, immediately
prior to the Distribution Date that corresponds to such Interest Accrual Period;
provided that, if the subject Interest Accrual Period ends during (x) January of
2006 or any year thereafter that is not a leap year or (y) February of 2006 or
any year thereafter, then the amount of interest calculated with respect to any
particular Loan REMIC Regular Interest or REMIC I Regular Interest pursuant to
this definition for such Interest Accrual Period without regard to this proviso
shall be decreased by the Interest Reserve Amount, if any, with respect to the
related Interest Reserve Mortgage Loan or Interest Reserve REO Mortgage Loan, as
the case may be, transferred (in accordance with Section 3.04(c)) from the
Collection Account to the Interest Reserve Account in the calendar month in
which such Interest Accrual Period ends; and provided, further, that, if the
subject Interest Accrual Period ends during March of 2006 or any year
thereafter, then the amount calculated with respect to any particular Loan REMIC
Regular Interest or REMIC I Regular Interest pursuant to this definition for
such Interest Accrual Period without regard to this proviso shall be increased
by the Interest Reserve Amount(s), if any, with respect to the related Interest
Reserve Mortgage Loan or Interest Reserve REO Mortgage Loan, as the case may be,
transferred (in accordance with Section 3.05(c)) from the Interest Reserve
Account to the Collection Account in the calendar month in which such Interest
Accrual Period ends. For purposes of clause (a) of the prior sentence, the term
"Actual/360 Equivalent of the related Outside Servicing Fee Rate" means a rate
per annum equal to the product of (a) the subject Outside Servicing Fee Rate,
multiplied by (b) a fraction, expressed as a percentage, the numerator of which
is 30 and the denominator of which is the number of days in the applicable
Interest Accrual Period.
"Adjusted Principal Distribution Amount" shall mean, for any
Distribution Date, an amount equal to (a) the Principal Distribution Amount for
such Distribution Date, plus (b) all amounts to be added to such Principal
Distribution Amount pursuant to Section 1.03(c) for such Distribution Date,
minus (c) all amounts to be subtracted from such Principal Distribution Amount
pursuant to Section 1.03(b) for such Distribution Date.
"Adjusted REMIC II Remittance Rate" shall mean, with respect to any
REMIC II Regular Interest, for any Interest Accrual Period, an annual rate equal
to the annual Pass-Through Rate in effect during such Interest Accrual Period
for the Class of Principal Balance Certificates as to which such REMIC II
Regular Interest is the sole Corresponding REMIC II Regular Interest or is one
of two or more Corresponding REMIC II Regular Interests, as applicable.
"Administered REO Property" shall mean any REO Property other than, if
applicable, any Outside Administered REO Property.
"Administrative Cost Rate" shall mean: (a) with respect to each
Outside Serviced Trust Mortgage Loan (or any successor REO Trust Mortgage Loan
with respect thereto), the sum of (i) the related Outside Servicing Fee Rate,
(ii) the Trustee Fee Rate, and (iii) the related Master Servicing Fee Rate; and
(b) with respect to each other Trust Mortgage Loan (or any successor REO Trust
Mortgage
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Loan with respect thereto), the corresponding rate per annum specified as the
"Administrative Cost Rate" on the Trust Mortgage Loan Schedule, which, for each
Trust Mortgage Loan (or any successor REO Trust Mortgage Loan with respect
thereto), is equal to the sum of the related Master Servicing Fee Rate and the
Trustee Fee Rate.
"Advance" shall mean any P&I Advance or Servicing Advance.
"Adverse Grantor Trust Event" shall mean, subject to Section 2.05(b),
any endangerment to the status of the Grantor Trust as a grantor trust under the
Grantor Trust Provisions or any imposition of a tax on the Grantor Trust or any
of its assets or transactions.
"Adverse Rating Event" shall mean, with respect to any Class of
Certificates, as of any date of determination, the qualification, downgrade or
withdrawal of any rating then assigned to such Class of Certificates by either
Rating Agency.
"Adverse REMIC Event" shall mean, with respect to any REMIC Pool, any
endangerment of the status of such REMIC Pool as a REMIC under the REMIC
Provisions or, except as permitted by Section 3.17(a), any imposition of a tax
on such REMIC Pool or any of its assets or transactions (including the tax on
prohibited transactions as defined in Section 860F(a)(2) of the Code, the tax on
prohibited contributions set forth in Section 860G(d) of the Code and/or the tax
on "net income from foreclosure property" as defined in Section 860G(c) of the
Code).
"Affiliate" shall mean, with respect to any specified Person, any
other Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control", when used with
respect to any specified Person, means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement" shall mean this Pooling and Servicing Agreement, together
with all amendments hereof and supplements hereto.
"Annual Accountants' Report" shall have the meaning assigned thereto
in Section 3.14.
"Annual Performance Certification" shall have the meaning assigned
thereto in Section 3.13.
"Anticipated Repayment Date" shall mean, with respect to any ARD
Mortgage Loan, subject to Section 2.05(b), the date specified in the related
loan documents after which the Mortgage Rate for such ARD Mortgage Loan will
increase as specified in the related Mortgage Note.
"Appraisal Reduction Amount" shall mean, with respect to any Required
Appraisal Loan, an amount (calculated initially as of the applicable
Determination Date immediately following the later of the date on which the
subject Serviced Trust Mortgage Loan or Serviced Loan Combination, as
applicable, became a Required Appraisal Loan and the date on which the
applicable Required Appraisal was obtained, and thereafter as of each subsequent
applicable Determination Date during the period that the subject Serviced Trust
Mortgage Loan, REO Trust Mortgage Loan or Serviced Loan Combination, as
applicable, remains a Required Appraisal Loan) equal to the excess, if any, of:
(a) the sum of,
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without duplication, (i) the Stated Principal Balance of such Required Appraisal
Loan, (ii) to the extent not previously advanced by or on behalf of the Master
Servicer, the Trustee or the Fiscal Agent, all unpaid interest on such Required
Appraisal Loan through the most recent Due Date prior to the date of calculation
(exclusive of any portion thereof that represents Additional Interest and/or
Default Interest), (iii) all accrued and unpaid Special Servicing Fees,
Liquidation Fees and Workout Fees in respect of such Required Appraisal Loan,
(iv) all related unreimbursed Advances made by or on behalf of (plus all accrued
interest on such Advances payable to) the Master Servicer and/or any other party
hereto with respect to such Required Appraisal Loan, (v) any other unpaid items
that could become Additional Trust Fund Expenses in respect of such Required
Appraisal Loan, and (vi) all currently due and unpaid real estate taxes and
assessments, insurance premiums and, if applicable, ground rents, and any
unfunded improvement or other applicable reserves, in respect of the related
Mortgaged Property or REO Property, as the case may be (in each case, net of any
amounts escrowed with the Master Servicer or the Special Servicer for such
items); over (b) the Required Appraisal Value. Notwithstanding the foregoing, if
(i) any Serviced Trust Mortgage Loan or Serviced Loan Combination becomes a
Required Appraisal Loan, (ii) either (A) no Required Appraisal or update thereof
has been obtained or conducted, as applicable, with respect to the related
Mortgaged Property during the 12-month period prior to the date such Serviced
Trust Mortgage Loan or Serviced Loan Combination, as the case may be, became a
Required Appraisal Loan or (B) there shall have occurred since the date of the
most recent Required Appraisal or update thereof a material change in the
circumstances surrounding the related Mortgaged Property that would, in the
Special Servicer's reasonable judgment, materially affect the value of the
related Mortgaged Property, and (iii) no Required Appraisal is obtained or
conducted, as applicable, in accordance with Section 3.09(a), within 60 days
after such Serviced Trust Mortgage Loan or Serviced Loan Combination, as the
case may be, became a Required Appraisal Loan, then (x) until such Required
Appraisal or update is obtained or conducted, as applicable, in accordance with
Section 3.09(a), the Appraisal Reduction Amount shall equal 25% of the Stated
Principal Balance of such Required Appraisal Loan, and (y) upon receipt or
performance, as applicable, in accordance with Section 3.09(a), of such Required
Appraisal or update thereof by the Special Servicer, the Appraisal Reduction
Amount for such Required Appraisal Loan shall be recalculated in accordance with
the preceding sentence of this definition. For purposes of this definition, each
Required Appraisal Loan that is part of a Cross-Collateralized Group shall be
treated separately for the purposes of calculating any Appraisal Reduction
Amount.
Any Appraisal Reduction Amount with respect to a Serviced Loan
Combination shall be calculated, and allocated between or among, as the case may
be, the respective Mortgage Loans comprising the subject Serviced Loan
Combination, by the Master Servicer pursuant to this Agreement and consistent
with the related Co-Lender Agreement; and the related Serviced Non-Trust
Mortgage Loan Noteholder(s) shall be entitled to rely on such calculations, and
the allocations to the subject Serviced Non-Trust Mortgage Loan(s) or any
successor REO Trust Mortgage Loan(s) with respect thereto, as reported to it or
them, as the case may be, by the Master Servicer.
Each Appraisal Reduction Amount shall be reduced to zero as of the
date the subject Serviced Trust Mortgage Loan or Serviced Loan Combination, as
applicable, ceases to be a Required Appraisal Loan, and no Appraisal Reduction
Amount shall exist as to any Serviced Trust Mortgage Loan (or any successor REO
Trust Mortgage Loan with respect thereto) or any Serviced Loan Combination after
it has been paid in full, liquidated, repurchased or otherwise disposed of.
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Notwithstanding the foregoing, in the case of an Outside Serviced Loan
Combination, the term "Appraisal Reduction Amount" shall have the meaning
assigned to that term or any analogous term in the related Outside Servicing
Agreement. Further notwithstanding the foregoing, any Appraisal Reduction Amount
with respect to an Outside Serviced Loan Combination shall be calculated, and
allocated between the respective Mortgage Loans comprising such Outside Serviced
Loan Combination by the applicable Outside Servicer pursuant to the related
Outside Servicing Agreement; and the parties hereto shall be entitled to rely on
such calculations, and the allocations to the Trust Mortgage Loan or REO Trust
Mortgage Loan, as applicable, in such Outside Serviced Loan Combination, as
reported to them by the applicable Outside Servicer.
"Appraised Value" shall mean, with respect to each Mortgaged Property
or REO Property, the appraised value thereof based upon the most recent
appraisal or update thereof prepared by an Independent Appraiser that is
contained in the related Servicing File or, in the case of any such property
with or that had, as the case may be, an allocated loan amount of, or securing a
Trust Mortgage Loan or relating to an REO Trust Mortgage Loan, as the case may
be, with a Stated Principal Balance of, less than $2,000,000, either (a) the
most recent appraisal or update thereof that is contained in the related
Servicing File or (b) the most recent "desktop" value estimate performed by the
Special Servicer that is contained in the related Servicing File.
"ARD Mortgage Loan" shall mean, subject to Section 2.05(b), any
Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) that
provides that if the unamortized principal balance thereof is not repaid by a
date certain set forth in the related loan documents, such Mortgage Loan (or
successor REO Mortgage Loan) will accrue additional interest at the rate
specified in the related Mortgage Note and the related Mortgagor is required to
apply certain excess monthly cash flow generated by the related Mortgaged
Property to the repayment of the outstanding principal balance on such Mortgage
Loan. If none of the Trust Mortgage Loans are reflected on the Trust Mortgage
Loan Schedule as being ARD Mortgage Loans, then Section 2.05(b) shall apply.
"ARD Trust Mortgage Loan" shall mean any Trust Mortgage Loan that is
an ARD Mortgage Loan. If none of the Trust Mortgage Loans are reflected on the
Trust Mortgage Loan Schedule as being ARD Mortgage Loans, then Section 2.05(b)
shall apply.
"Assignment of Leases" shall mean, with respect to any Mortgaged
Property, any assignment of leases, rents and profits or similar document or
instrument executed by the Mortgagor in connection with the origination of the
related Mortgage Loan(s).
"Assumed Monthly Payment" shall mean: (a) with respect to any Balloon
Mortgage Loan delinquent in respect of its Balloon Payment, for each Due Date
coinciding with or following its then Maturity Date as of which such Mortgage
Loan remains outstanding and part of the Trust Fund (or, in the case of a
Serviced Non-Trust Mortgage Loan, if applicable, as of which (i) such Non-Trust
Mortgage Loan remains outstanding and (ii) the related Trust Mortgage Loan
remains part of the Trust Fund) (provided that such Mortgage Loan was not paid
in full, and no other Liquidation Event occurred in respect thereof, before the
end of the related Collection Period in which such Maturity Date occurs), the
scheduled monthly payment of principal and/or interest deemed to be due in
respect of such Mortgage Loan on such Due Date equal to the amount that would
have been due in respect thereof on such Due Date if such Mortgage Loan had been
required to continue to accrue interest (other than Default Interest) in
accordance with its terms, and to pay principal in accordance with the
amortization
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schedule (if any), in effect immediately prior to, and without regard to the
occurrence of, such Maturity Date; and (b) with respect to any REO Mortgage
Loan, for any Due Date as of which the related REO Property (or any interest
therein) remains part of the Trust Fund, the scheduled monthly payment of
principal and/or interest deemed to be due in respect thereof on such Due Date
equal to the Monthly Payment (or, in the case of a Balloon Mortgage Loan
described in clause (a) of this definition, the Assumed Monthly Payment) that
was due (or deemed due) in respect of the related Mortgage Loan on the last Due
Date prior to its becoming an REO Mortgage Loan.
"ASTM" shall mean the American Society for Testing and Materials.
"Authenticating Agent" shall mean any authenticating agent appointed
pursuant to Section 8.12 (or, in the absence of any such appointment, the
Trustee).
"Available Distribution Amount" shall mean, with respect to any
Distribution Date, an amount equal to:
(a) the sum, without duplication, of (i) the aggregate amount of all
payments and other collections on or with respect to the Trust Mortgage
Loans and any REO Properties (including Loss of Value Payments and, in the
case of the initial Distribution Date, any Initial Deposits) that (A) were
Received by the Trust as of the end of the related Collection Period and
(B) are on deposit in the Collection Account as of 12:00 noon (New York
City time) on such Distribution Date, (ii) the aggregate amount of any P&I
Advances made by the Master Servicer, the Trustee and/or the Fiscal Agent
with respect to the Mortgage Pool for distribution on the Certificates on
such Distribution Date pursuant to Section 4.03, (iii) the aggregate amount
deposited by the Master Servicer in the Collection Account for such
Distribution Date pursuant to Section 3.19(a) in connection with Prepayment
Interest Shortfalls on the Mortgage Pool, (iv) to the extent not included
in the amount described in clause (a)(i) of this definition, the aggregate
amount transferred from the Excess Liquidation Proceeds Account to the
Collection Account pursuant to Section 3.05(d) in respect of such
Distribution Date, (v) to the extent not included in the amount described
in clause (a)(i) of this definition, if such Distribution Date is the Final
Distribution Date, the aggregate amount transferred from the Loss of Value
Reserve Fund to the Collection Account pursuant to Section 3.05(e) in
respect of such Distribution Date, and (vi) to the extent not included in
the amount described in clause (a)(i) of this definition, if such
Distribution Date occurs during March of 2006 or any year thereafter, the
aggregate of the Interest Reserve Amounts transferred from the Interest
Reserve Account to the Collection Account in respect of the Interest
Reserve Mortgage Loans and any Interest Reserve REO Mortgage Loans for
distribution on such Distribution Date; net of
(b) the portion of the aggregate amount described in clause (a) of
this definition that represents one or more of the following--(i) scheduled
Monthly Payments that are due on a Due Date following the end of the
related Collection Period (or, in the case of a scheduled Monthly Payment
that is due on a Due Date in the same month as such Distribution Date but
subsequent to the end of the related Collection Period, following the end
of the calendar month in which such Distribution Date occurs), (ii) any
amounts payable or reimbursable to any Person from the Collection Account
pursuant to clauses (ii) through (v) and (viii) of Section 3.05(b), (iii)
Prepayment Consideration and/or Additional Interest, (iv) if such
Distribution Date occurs during January of 2006 or any year thereafter that
is not a leap year or during February of 2006
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or any year thereafter, the Interest Reserve Amounts with respect to the
Interest Reserve Mortgage Loans and any Interest Reserve REO Mortgage Loans
to be withdrawn from the Collection Account and deposited into the Interest
Reserve Account in respect of such Distribution Date and held for future
distribution, all pursuant to Section 3.04(c), and (v) amounts deposited in
the Collection Account in error;
provided that the Available Distribution Amount for the Final Distribution Date
shall consist of all amounts on deposit in the Collection Account as of the time
distributions are to be made to Certificateholders on the Final Distribution
Date, exclusive of any portion of such amounts that are payable or reimbursable
to any Person from the Collection Account pursuant to clauses (ii) through (v)
and (viii) of Section 3.05(b), that were deposited in the Collection Account in
error or that represent Prepayment Consideration and/or Additional Interest.
"Balloon Mortgage Loan" shall mean any Mortgage Loan that by its
original terms or by virtue of any modification entered into as of the Closing
Date provides for an amortization schedule extending beyond its Stated Maturity
Date and as to which, in accordance with such terms, the Scheduled Payment due
on its Stated Maturity Date is significantly larger than the Scheduled Payment
due on the Due Date next preceding its Stated Maturity Date.
"Balloon Payment" shall mean, with respect to any Balloon Mortgage
Loan as of any date of determination, the payment, other than any regularly
scheduled monthly payment, due with respect to such Mortgage Loan at maturity.
"Balloon Trust Mortgage Loan" shall mean any Trust Mortgage Loan that
is a Balloon Mortgage Loan.
"Bid Allocation" shall mean, with respect to the Master Servicer or
any Sub-Servicer and the proceeds of any bid pursuant to Section 7.01(c), the
amount of such proceeds (net of any expenses incurred in connection with such
bid and the transfer of servicing), multiplied by a fraction equal to (a) the
Servicer Fee Amount for the Master Servicer or such Sub-Servicer, as the case
may be, as of such date of determination, over (b) the aggregate of the Servicer
Fee Amounts for the Master Servicer and all of the Sub-Servicers as of such date
of determination.
"Book-Entry Certificate" shall mean any Certificate registered in the
name of the Depository or its nominee.
"Book-Entry Non-Registered Certificate" shall mean any Non-Registered
Certificate that constitutes a Book-Entry Certificate.
"Book-Entry Subordinate Certificate" shall mean any Subordinate
Certificate that constitutes a Book-Entry Certificate.
"Breach" shall have the meaning assigned thereto in Section 2.03(a).
"Business Day" shall mean any day other than a Saturday, a Sunday or a
day on which banking institutions in New York, New York, or in any of the cities
in which the Corporate Trust Office of the Trustee, the Primary Servicing Office
of the Master Servicer or the Primary Servicing Office of the Special Servicer
are located, are authorized or obligated by law or executive order to remain
closed.
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"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"Certificate" shall mean any one of the LB-UBS Commercial Mortgage
Trust 2005-C5, Commercial Mortgage Pass-Through Certificates, Series 2005-C5, as
executed by the Certificate Registrar and authenticated and delivered hereunder
by the Authenticating Agent.
"Certificate Factor" shall mean, with respect to any Class of Regular
Interest Certificates, as of any date of determination, a fraction, expressed as
a decimal carried to six places, the numerator of which is the then current
Class Principal Balance or Class Notional Amount, as the case may be, of such
Class of Regular Interest Certificates, and the denominator of which is the
Original Class Principal Balance or Original Class Notional Amount, as the case
may be, of such Class of Regular Interest Certificates.
"Certificate Notional Amount" shall mean, with respect to any
Interest-Only Certificate, as of any date of determination, the then notional
amount of such Certificate equal to the product of (a) the then Certificate
Factor for the Class of Interest-Only Certificates to which such Certificate
belongs, multiplied by (b) the amount specified on the face of such Certificate
as the initial Certificate Notional Amount thereof.
"Certificate Owner" shall mean, with respect to a Book-Entry
Certificate, the Person who is the beneficial owner of such Certificate as
reflected on the books of the Depository or on the books of a Depository
Participant or on the books of an indirect participating brokerage firm for
which a Depository Participant acts as agent.
"Certificate Principal Balance" shall mean, with respect to any
Principal Balance Certificate, as of any date of determination, the then
outstanding principal balance of such Certificate equal to the product of (a)
the then Certificate Factor for the Class of Principal Balance Certificates to
which such Certificate belongs, multiplied by (b) the amount specified on the
face of such Certificate as the initial Certificate Principal Balance thereof.
"Certificate Register" shall mean the register maintained pursuant to
Section 5.02.
"Certificate Registrar" shall mean the registrar appointed pursuant to
Section 5.02.
"Certificateholder" shall mean the Person in whose name a Certificate
is registered in the Certificate Register, except that: (i) neither a
Disqualified Organization nor a Disqualified Non-United States Tax Person shall
be Holder of a Residual Interest Certificate for any purpose hereof; and (ii)
solely for the purposes of giving any consent, approval or waiver pursuant to
this Agreement that relates to the rights and/or obligations of any of the
Depositor, the Master Servicer, the Special Servicer, the Fiscal Agent or the
Trustee in its respective capacity as such, any Certificate registered in the
name of the Depositor, the Master Servicer, the Special Servicer, the Fiscal
Agent or the Trustee, as the case may be, or any Certificate registered in the
name of any of its Affiliates, shall be deemed not to be outstanding, and the
Voting Rights to which it is entitled shall not be taken into account in
determining whether the requisite percentage of Voting Rights necessary to
effect any such consent, approval or waiver that relates to it has been obtained
(provided that the provisions of this clause (ii) are not intended to limit the
rights of the Controlling Class Representative (which may be an Affiliate of the
Special Servicer) as are specifically set forth in this Agreement with respect
to any consent, approval or
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waiver required or permitted to be made by the Controlling Class Representative
or any rights under Section 6.09 with respect to any election, removal or
replacement of the Special Servicer or the Controlling Class Representative).
The Certificate Registrar shall be entitled to request and rely upon a
certificate of the Depositor, the Master Servicer or the Special Servicer in
determining whether a Certificate is registered in the name of an Affiliate of
such Person. All references herein to "Certificateholders" shall reflect the
rights of Certificate Owners as they may indirectly exercise such rights through
the Depository and the Depository Participants, except as otherwise specified
herein; provided, however, that the parties hereto shall be required to
recognize as a "Certificateholder" only the Person in whose name a Certificate
is registered in the Certificate Register.
"Certificateholder Reports" shall mean, collectively, the Distribution
Date Statement, the Mortgage Pool Data Update Report, the Loan Payoff
Notification Report, the CMSA Investor Reporting Package and any reports
comparable to the foregoing with respect to an Outside Serviced Trust Mortgage
Loan or any related REO Property that are deliverable to the Trustee (or to the
Master Servicer on behalf of the Trustee), as holder of the Mortgage Note for
such Outside Serviced Trust Mortgage Loan.
"Certifying Officer" shall have the meaning assigned thereto in
Section 8.15(d).
"Certifying Party" shall have the meaning assigned thereto in Section
8.15(d).
"Class" shall mean, collectively, all of the Certificates bearing the
same alphabetic or alphanumeric, as applicable, class designation or all of the
Holders of Certificates bearing the same alphabetic or alphanumeric, as
applicable, class designation, as the context may require.
"Class A Certificate" shall mean any of the Class A-1, Class X-0,
Xxxxx X-0, Class A-AB, Class A-4, Class A-1A, Class A-M and Class A-J
Certificates.
"Class A-1 Certificate" shall mean any one of the Certificates with a
"Class A-1" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class A-1A Certificate" shall mean any one of the Certificates with a
"Class A-1A" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class A-2 Certificate" shall mean any one of the Certificates with a
"Class A-2" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class A-3 Certificate" shall mean any one of the Certificates with a
"Class A-3" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class A-4 Certificate" shall mean any one of the Certificates with a
"Class A-4" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
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"Class A-AB Certificate" shall mean any one of the Certificates with a
"Class A-AB" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class A-AB Planned Principal Balance" shall mean, with respect to any
Distribution Date, the targeted Class Principal Balance of the Class A-AB
Certificates for such date set forth on Schedule IX attached hereto.
"Class A-J Certificate" shall mean any one of the Certificates with a
"Class A-J" designation on the face thereof, substantially in the form of
Exhibit A-4 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class A-M Certificate" shall mean any one of the Certificates with a
"Class A-M" designation on the face thereof, substantially in the form of
Exhibit A-4 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class B Certificate" shall mean any one of the Certificates with a
"Class B" designation on the face thereof, substantially in the form of Exhibit
A-4 attached hereto, and evidencing a portion of a class of "regular interests"
in REMIC III for purposes of the REMIC Provisions.
"Class B Through T Certificate" shall mean any Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class P, Class Q, Class S or Class T Certificate.
"Class C Certificate" shall mean any one of the Certificates with a
"Class C" designation on the face thereof, substantially in the form of Exhibit
A-4 attached hereto, and evidencing a portion of a class of "regular interests"
in REMIC III for purposes of the REMIC Provisions.
"Class D Certificate" shall mean any one of the Certificates with a
"Class D" designation on the face thereof, substantially in the form of Exhibit
A-4 attached hereto, and evidencing a portion of a class of "regular interests"
in REMIC III for purposes of the REMIC Provisions.
"Class E Certificate" shall mean any one of the Certificates with a
"Class E" designation on the face thereof, substantially in the form of Exhibit
A-4 attached hereto, and evidencing a portion of a class of "regular interests"
in REMIC III for purposes of the REMIC Provisions.
"Class F Certificate" shall mean any one of the Certificates with a
"Class F" designation on the face thereof, substantially in the form of Exhibit
A-5 attached hereto, and evidencing a portion of a class of "regular interests"
in REMIC III for purposes of the REMIC Provisions.
"Class G Certificate" shall mean any one of the Certificates with a
"Class G" designation on the face thereof, substantially in the form of Exhibit
A-5 attached hereto, and evidencing a portion of a class of "regular interests"
in REMIC III for purposes of the REMIC Provisions.
"Class H Certificate" shall mean any of the Certificates with a "Class
H" designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
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"Class J Certificate" shall mean any one of the Certificates with a
"Class J" designation on the face thereof, substantially in the form of Exhibit
A-5 attached hereto, and evidencing a portion of a class of "regular interests"
in REMIC III for purposes of the REMIC Provisions.
"Class K Certificate" shall mean any of the Certificates with a "Class
K" designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class L Certificate" shall mean any of the Certificates with a "Class
L" designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class M Certificate" shall mean any of the Certificates with a "Class
M" designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class N Certificate" shall mean any of the Certificates with a "Class
N" designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class Notional Amount" shall mean the aggregate hypothetical or
notional amount on which a Class of Interest-Only Certificates accrues or is
deemed to accrue interest from time to time. As of any date of determination,
the Class Notional Amount of each Class of Interest-Only Certificates shall
equal the then aggregate of the Component Notional Amounts of all the REMIC III
Components of such Class of Interest-Only Certificates; provided that, for
reporting purposes, the Class Notional Amount of the Class X-CP Certificates
shall be calculated in accordance with the Prospectus Supplement.
"Class P Certificate" shall mean any of the Certificates with a "Class
P" designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class Principal Balance" shall mean the aggregate principal balance
outstanding from time to time of any Class of Principal Balance Certificates. As
of the Closing Date, the Class Principal Balance of each Class of Principal
Balance Certificates shall equal the Original Class Principal Balance thereof.
On each Distribution Date, the Class Principal Balance of each Class of
Principal Balance Certificates shall be reduced by the amount of any
distributions of principal made thereon on such Distribution Date pursuant to
Section 4.01 or 9.01, as applicable, and shall be further reduced (subject to
Section 4.05) by the amount of any Realized Losses and Additional Trust Fund
Expenses deemed allocated thereto on such Distribution Date pursuant to Section
4.04. On each Distribution Date, the Class Principal Balance of each Class of
Principal Balance Certificates shall be increased by the related Class Principal
Reinstatement Amount, if any, for such Distribution Date.
"Class Principal Reinstatement Amount" shall have the meaning assigned
thereto in Section 4.05(a).
"Class Q Certificate" shall mean any of the Certificates with a "Class
Q" designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
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"Class R-I Certificate" shall mean any of the Certificates with a
"Class R-I" designation on the face thereof, substantially in the form of
Exhibit A-6 attached hereto, and evidencing a portion of the sole class of
"residual interests" in REMIC I for purposes of the REMIC Provisions.
"Class R-II Certificate" shall mean any of the Certificates with a
"Class R-II" designation on the face thereof, substantially in the form of
Exhibit A-6 attached hereto, and evidencing a portion of the sole class of
"residual interests" in REMIC II for purposes of the REMIC Provisions.
"Class R-III Certificate" shall mean any of the Certificates with a
"Class R-III" designation on the face thereof, substantially in the form of
Exhibit A-6 attached hereto, and evidencing a portion of the sole class of
"residual interests" in REMIC III for purposes of the REMIC Provisions.
"Class R-LR Certificate" shall mean, subject to Section 2.06(b), any
of the Certificates with a "Class R-LR" designation on the face thereof,
substantially in the form of Exhibit A-6 attached hereto, and evidencing a
portion of the sole class of "residual interests" in each Loan REMIC for
purposes of the REMIC Provisions.
"Class S Certificate" shall mean any of the Certificates with a "Class
S" designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class T Certificate" shall mean any of the Certificates with a "Class
T" designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class V Certificate" shall mean, subject to Section 2.05(b), any of
the Certificates with a "Class V" designation on the face thereof, substantially
in the form of Exhibit A-7 attached hereto, and evidencing a pro rata undivided
interest in the Grantor Trust Assets.
"Class V Sub-Account" shall mean, subject to Section 2.05(b), a
sub-account of the Collection Account established pursuant to Section 3.04(b),
which sub-account shall constitute an asset of the Trust Fund and the Grantor
Trust, but not an asset of any REMIC Pool.
"Class X-CL Certificate" shall mean any one of the Certificates with a
"Class X-CL" designation on the face thereof, substantially in the form of
Exhibit A-3 attached hereto, and evidencing a portion of 43 separate "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class X-XX XXXXX III Component" shall mean any of the 43 separate
"regular interests" in REMIC III evidenced by the Class X-CL Certificates, each
of which: (i) relates to its Corresponding REMIC II Regular Interest; (ii)
accrues interest at its Pass-Through Rate in effect from time to time; and (iii)
has a Component Notional Amount equal to the Uncertificated Principal Balance of
its Corresponding REMIC II Regular Interest outstanding from time to time. The
Class X-XX XXXXX III Components shall have the following alphabetic and
alphanumeric designations: X-CL-A-1-1; X-CL-A-1-2; X-CL-A-1A-1; X-CL-A-1A-2;
X-CL-A-1A-3; X-CL-A-1A-4; X-CL-A-1A-5; X-CL-A-1A-6; X-CL-A-1A-7; X-CL-A-1A-8;
X-CL-A-2-1; X-CL-A-2-2; X-CL-A-2-3; X-CL-A-2-4; X-CL-A-3; X-CL-A-AB; X-CL-A-4-1;
X-CL-A-4-2; X-CL-A-4-3; X-CL-A-4-4; X-CL-A-M; X-XX-X-X; X-CL-B; X-CL-C-1;
X-CL-C-2; X-CL-D-1; X-CL-D-2; X-CL-E; X-CL-F-1; X-CL-F-2; X-CL-G-1; X-CL-G-
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2; X-CL-H; X-CL-J-1; X-CL-J-2; X-CL-K; X-CL-L; X-CL-M; X-CL-N; X-CL-P; X-CL-Q;
X-CL-S; and X-CL-T.
"Class X-CP Certificate" shall mean any one of the Certificates with a
"Class X-CP" designation on the face thereof, substantially in the form of
Exhibit A-2 attached hereto, and evidencing a portion of 33 separate "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class X-CP REMIC III Component" shall mean any of the 33 separate
"regular interests" in REMIC III evidenced by the Class X-CP Certificates, each
of which: (i) relates to its Corresponding REMIC II Regular Interest; (ii)
accrues interest at its Pass-Through Rate in effect from time to time; and (iii)
has a Component Notional Amount equal to the Uncertificated Principal Balance of
its Corresponding REMIC II Regular Interest outstanding from time to time. The
Class X-CP REMIC III Components shall have the respective alphabetic and
alphanumeric designations set forth in the definition of "Class X-CP Termination
Date".
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"Class X-CP Termination Date" shall mean, with respect to any Class
X-CP REMIC III Component, the Distribution Date in the month and year specified
opposite the alphanumeric designation for such Class X-CP REMIC III Component in
the following table.
Designation of Class X-CP Month and Year of Class X-CP
REMIC III Component Termination Date
------------------------- ----------------------------
X-CP-A-1-2 August 2006
X-CP-A-1A-2 August 2006
X-CP-A-1A-3 August 2007
X-CP-A-1A-4 August 2008
X-CP-A-1A-5 August 2009
X-CP-A-1A-6 August 2010
X-CP-A-1A-7 August 2011
X-CP-A-1A-8 August 2012
X-CP-A-2-1 August 2006
X-CP-A-2-2 August 2007
X-CP-A-2-3 August 2008
X-CP-A-2-4 August 2009
X-CP-A-3 August 2009
X-CP-A-AB August 2009
X-CP-A-4-1 August 2009
X-CP-A-4-2 August 2010
X-CP-A-4-3 August 2011
X-CP-A-4-4 August 2012
X-CP-A-M August 2012
X-XX-X-X August 2012
X-CP-B August 2012
X-CP-C-1 August 2011
X-CP-C-2 August 2012
X-CP-D-1 August 2010
X-CP-D-2 August 2011
X-CP-E August 2010
X-CP-F-1 August 2009
X-CP-F-2 August 2010
X-CP-G-1 August 2008
X-CP-G-2 August 2009
X-CP-H August 2008
X-CP-J-1 August 2007
X-CP-J-2 August 2008
"Clearstream" shall mean Clearstream Banking, Luxembourg or any
successor.
"Closing Date" shall mean August 25, 2005.
"CMSA" shall mean the Commercial Mortgage Securities Association, or
any association or organization that is a successor thereto. If neither such
association nor any successor remains in existence, "CMSA" shall be deemed to
refer to such other association or organization as may exist
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whose principal membership consists of servicers, trustees, issuers, placement
agents and underwriters generally involved in the commercial mortgage loan
securitization industry, which is the principal such association or organization
in the commercial mortgage loan securitization industry and one of whose
principal purposes is the establishment of industry standards for reporting
transaction-specific information relating to commercial mortgage pass-through
certificates and commercial mortgage-backed bonds and the commercial mortgage
loans and foreclosed properties underlying or backing them to investors holding
or owning such certificates or bonds, and any successor to such other
association or organization. If an organization or association described in one
of the preceding sentences of this definition does not exist, "CMSA" shall be
deemed to refer to such other association or organization as shall be selected
by the Master Servicer and reasonably acceptable to the Trustee, the Special
Servicer and the Controlling Class Representative.
"CMSA Advance Recovery Report" shall mean a report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Advance Recovery Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information as may from
time to time be approved by the CMSA for commercial mortgage securities
transactions generally.
"CMSA Bond Level File" shall mean the monthly report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Bond Level File" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Collateral Summary File" shall mean the report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Collateral Summary File" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally.
"CMSA Comparative Financial Status Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Comparative Financial Status Report" available as of
the Closing Date on the CMSA Website, or such other form for the presentation of
such information as may from time to time be approved by the CMSA for commercial
mortgage securities transactions generally. In connection with preparing the
CMSA Comparative Financial Status Report, the Master Servicer shall process (a)
interim financial statements beginning with interim financial statements for the
fiscal quarter ending December of 2005, and (b) annual financial statements
beginning with annual financial statements for the 2005 fiscal year.
"CMSA Delinquent Loan Status Report" shall mean 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.
"CMSA Financial File" shall mean 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
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such additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Historical Liquidation Report" shall mean 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.
"CMSA Historical Loan Modification and Corrected Mortgage Loan Report"
shall mean 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.
"CMSA Investor Reporting Package" shall mean, collectively:
(a) the following six electronic files: (i) CMSA Loan Setup File, (ii)
CMSA Loan Periodic Update File, (iii) CMSA Property File, (iv) CMSA Bond
Level File, (v) CMSA Financial File and (vi) CMSA Collateral Summary File;
(b) the following ten supplemental reports: (i) CMSA Delinquent Loan
Status Report, (ii) CMSA Historical Loan Modification and Corrected
Mortgage Loan Report, (iii) CMSA Historical Liquidation Report, (iv) CMSA
REO Status Report, (v) CMSA Operating Statement Analysis Report, (vi) CMSA
Comparative Financial Status Report, (vii) CMSA Servicer Watch List, (viii)
CMSA Advance Recovery Report, (ix) CMSA Loan Level Reserve/LOC Report and
(x) CMSA NOI Adjustment Worksheet; and
(c) such other reports as the CMSA may approve from time to time as
being part of the CMSA Investor Reporting Package for commercial mortgage
securitization trusts generally and as are reasonably acceptable to the
Master Servicer.
"CMSA Loan Level Reserve/LOC Report" shall mean the monthly 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.
"CMSA Loan Periodic Update File" shall mean the monthly report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Loan Periodic Update File" available as of the Closing
Date on the CMSA Website, or such other form for the presentation of such
information and containing such additional information as may from time to time
be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Loan Setup File" shall mean the report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Loan Setup File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and
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containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally.
"CMSA NOI Adjustment Worksheet" shall mean a report prepared by the
Master Servicer with respect to all the Performing Serviced Mortgage Loans, and
by the Special Servicer with respect to Specially Serviced Mortgage Loans and,
if they relate to Administered REO Properties, REO Mortgage Loans, which report
shall be substantially in the form of, and contain 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.
"CMSA Operating Statement Analysis Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Operating Statement Analysis Report" available as of
the Closing Date on the CMSA Website or in such other form for the presentation
of such information and containing such additional information as may from time
to time be approved by the CMSA for commercial mortgage-backed securities
transactions generally.
"CMSA Property File" shall mean 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.
"CMSA REO Status Report" shall mean a report substantially in the form
of, and containing the information called for in, the downloadable form of the
"REO Status Report" available as of the Closing Date on the CMSA Website, or in
such other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Servicer Watch List" shall mean a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Servicer Watch List" available as of the Closing Date on the CMSA Website,
or in such other form for the presentation of such information and containing
such additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Website" shall mean 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" shall mean the Internal Revenue Code of 1986 and regulations
promulgated thereunder, including temporary regulations and proposed regulations
to the extent that, by reason of their proposed effective date, could, as of the
date of any determination or opinion as to the tax consequences of any action or
proposed action or transaction, be applied to the Certificates.
"Co-Lender Agreement" shall mean, with respect to any Loan
Combination, the co-lender agreement governing the relative rights of the
respective holders of the Mortgage Loans comprising such Loan Combination. The
Co-Lender Agreements consist of the 000 Xxxx Xxxxxx Co-
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Lender Agreement, the Courtyard by Marriott Co-Lender Agreement, the 1345 Avenue
of the Americas Co-Lender Agreement, the Park Avenue Plaza Co-Lender Agreement,
the 000 Xxxx Xxxxxxx Co-Lender Agreement and the other A/B Co-Lender Agreements.
"Collection Account" shall mean the segregated account or accounts
created and maintained by the Trustee pursuant to Section 3.04(b), which shall
be entitled "[NAME OF TRUSTEE], as Trustee, in trust for the registered holders
of LB-UBS Commercial Mortgage Trust 2005-C5, Commercial Mortgage Pass-Through
Certificates, Series 2005-C5".
"Collection Period" shall mean, individually and collectively, as
applicable in the context used, (i) the related Loan Combination Collection
Period with respect to each Loan Combination and all related matters, and (ii)
the Trust Collection Period with respect to the Mortgage Pool (exclusive of
those Trust Mortgage Loans and any REO Trust Mortgage Loans that are part of a
Loan Combination) and all related matters.
"Combination Trust Mortgage Loan" shall mean any Trust Mortgage Loan
that constitutes part of a Loan Combination. The Combination Trust Mortgage
Loans are the 000 Xxxx Xxxxxx Trust Mortgage Loan, the Courtyard by Marriott
Trust Mortgage Loan, the 1345 Avenue of the Americas Trust Mortgage Loan, the
Park Avenue Plaza Trust Mortgage Loan, the 000 Xxxx Xxxxxxx Trust Mortgage Loan
and the other Serviced Note A Trust Mortgage Loans.
"Commission" shall mean the Securities and Exchange Commission or any
successor agency.
"Component Notional Amount" shall mean the notional amount on which
any REMIC III Component of either Class of Interest-Only Certificates accrues
interest, which, as of any date of determination, is equal to the then current
Uncertificated Principal Balance of such REMIC III Component's Corresponding
REMIC II Regular Interest.
"Condemnation Proceeds" shall mean all cash amounts Received by the
Trust in connection with the taking of all or a part of a Mortgaged Property or
REO Property by exercise of the power of eminent domain or condemnation,
subject, however, to the rights of any tenants and ground lessors, as the case
may be, and the terms of the related Mortgage.
"Controlling Class" shall mean, as of any date of determination, the
then most subordinate (based on the payment priorities set forth in Sections
4.01(a) and 4.01(b)) outstanding Class of Principal Balance Certificates that
has a Class Principal Balance that is at least equal to 25% of the Original
Class Principal Balance of such Class; provided that if no Class of Principal
Balance Certificates has as of such date of determination a Class Principal
Balance that is at least equal to 25% of its Original Class Principal Balance,
then the Controlling Class shall be the then most subordinate (based on the
payment priorities set forth in Sections 4.01(a) and 4.01(b)) outstanding Class
of Principal Balance Certificates that has a Class Principal Balance greater
than zero; and provided, further, that, for purposes of determining, and
exercising the rights of, the Controlling Class, all of the Senior Class A
Certificates shall be deemed to constitute a single Class of Certificates.
"Controlling Class Certificateholder" shall mean any Holder of a
Certificate of the Controlling Class.
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"Controlling Class Representative" shall have the meaning assigned
thereto in Section 6.09(b).
"Controlling Class Representative Confirmation" shall have the meaning
assigned thereto in Section 6.09(b).
"Corporate Trust Office" shall mean the principal corporate trust
office of the Trustee at which at any particular time its corporate trust
business with respect to this Agreement shall be administered, which office at
the date of the execution of this Agreement is located at 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Global Securities and
Trust Services Group -- LB-UBS Commercial Mortgage Trust 2005-C5.
"Corrected Mortgage Loan" shall mean any Serviced Mortgage Loan that
had been a Specially Serviced Mortgage Loan but has ceased to be such in
accordance with the definition of "Specially Serviced Mortgage Loan" (other than
by reason of a Liquidation Event occurring in respect of such Serviced Mortgage
Loan or the related Mortgaged Property's becoming an REO Property). None of the
Mortgage Loans comprising an Outside Serviced Loan Combination shall constitute
a Corrected Mortgage Loan under this Agreement.
"Corrected Trust Mortgage Loan" shall mean any Trust Mortgage Loan
that constitutes a Corrected Mortgage Loan.
"Corresponding REMIC II Regular Interest" shall mean: (a) with respect
to any Class of Principal Balance Certificates, the REMIC II Regular Interest
that has an alphabetic or alphanumeric, as applicable, designation that is the
same as the alphabetic or alphanumeric, as the case may be, designation for such
Class of Principal Balance Certificates (provided that each REMIC II Regular
Interest with an alphanumeric designation that begins "A-1-" shall be a
Corresponding REMIC II Regular Interest with respect to the Class A-1
Certificates, each REMIC II Regular Interest with an alphanumeric designation
that begins "A-1A-" shall be a Corresponding REMIC II Regular Interest with
respect to the Class A-1A Certificates, each REMIC II Regular Interest with an
alphanumeric designation that begins "A-2-" shall be a Corresponding REMIC II
Regular Interest with respect to the Class A-2 Certificates, each REMIC II
Regular Interest with an alphanumeric designation that begins "A-4-" shall be a
Corresponding REMIC II Regular Interest with respect to the Class A-4
Certificates, each REMIC II Regular Interest with an alphanumeric designation
that begins "C-" shall be a Corresponding REMIC II Regular Interest with respect
to the Class C Certificates, each REMIC II Regular Interest with an alphanumeric
designation that begins "D-" shall be a Corresponding REMIC II Regular Interest
with respect to the Class D Certificates, each REMIC II Regular Interest with an
alphanumeric designation that begins "F-" shall be a Corresponding REMIC II
Regular Interest with respect to the Class F Certificates, each REMIC II Regular
Interest with an alphanumeric designation that begins "G-" shall be a
Corresponding REMIC II Regular Interest with respect to the Class G Certificates
and each REMIC II Regular Interest with an alphanumeric designation that begins
"J-" shall be a Corresponding REMIC II Regular Interest with respect to the
Class J Certificates); (b) with respect to any Class X-XX XXXXX III Component,
the REMIC II Regular Interest that has an alphabetic or alphanumeric, as
applicable, designation that, when preceded by "X-CL-", is the same as the
alphabetic or alphanumeric, as the case may be, designation for such Class X-XX
XXXXX III Component; and (c) with respect to any Class X-CP REMIC III Component,
the REMIC II Regular Interest that has an alphabetic or alphanumeric, as
applicable, designation that, when preceded by "X-CP-", is the same as
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the alphabetic or alphanumeric, as the case may be, designation for such Class
X-CP REMIC III Component.
"Corresponding Class X-CP REMIC III Component" shall mean, with
respect to any Class X-XX XXXXX III Component, any Class X-CP REMIC III
Component that has the same Corresponding REMIC II Regular Interest as
such Class X-XX XXXXX III Component. If the Corresponding REMIC II Regular
Interest for any Class X-XX XXXXX III Component is not also a Corresponding
REMIC II Regular Interest for a Class X-CP REMIC III Component, then such Class
X-XX XXXXX III Component shall not have a Corresponding Class X-CP REMIC III
Component.
"Courtyard by Marriott Co-Lender Agreement" shall have the meaning
assigned thereto in the Preliminary Statement.
"Courtyard by Marriott Collection Period" shall mean, with respect to
any Trust Master Servicer Remittance Date or any Distribution Date, the period
commencing on the day immediately following the Courtyard by Marriott
Determination Date in the calendar month preceding the calendar month in which
such Trust Master Servicer Remittance Date or such Distribution Date, as the
case may be, occurs (or, in the case of each of the initial Trust Master
Servicer Remittance Date and the initial Distribution Date, commencing
immediately following the Cut-off Date) and ending on and including the
Courtyard by Marriott Determination Date in the calendar month in which such
Trust Master Servicer Remittance Date or such Distribution Date, as the case may
be, occurs.
"Courtyard by Marriott Determination Date" shall mean the "Remittance
Date" under the Courtyard by Marriott Co-Lender Agreement.
"Courtyard by Marriott Loan Combination" shall have the meaning
assigned thereto in the Preliminary Statement.
"Courtyard by Marriott Master Servicer" shall have the meaning
assigned thereto in the Preliminary Statement.
"Courtyard by Marriott Mortgage Loan" shall mean the Courtyard by
Marriott Trust Mortgage Loan or any Courtyard by Marriott Non-Trust Mortgage
Loan, as applicable.
"Courtyard by Marriott Mortgaged Property" shall have the meaning
assigned thereto in the Preliminary Statement.
"Courtyard by Marriott Non-Trust Mortgage Loan Noteholder" shall mean
the holder (or, if applicable, the collective holders) of the Mortgage Note for
the Courtyard by Marriott Non-Trust Mortgage Loan.
"Courtyard by Marriott Non-Trust Mortgage Loans" shall have the
meaning assigned thereto in the Preliminary Statement.
"Courtyard by Marriott Note A-1 Non-Trust Mortgage Loan" shall have
the meaning assigned thereto in the Preliminary Statement.
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"Courtyard by Marriott Note A-1 Non-Trust Mortgage Loan Noteholder"
shall mean the holder (or, if applicable, the collective holders) of the
Mortgage Note for the Courtyard by Marriott Note A-1 Non-Trust Mortgage Loan.
"Courtyard by Marriott Note A-2 Non-Trust Mortgage Loan" shall have
the meaning assigned thereto in the Preliminary Statement.
"Courtyard by Marriott Note A-2 Non-Trust Mortgage Loan Noteholder"
shall mean the holder (or, if applicable, the collective holders) of the
Mortgage Note for the Courtyard by Marriott Note A-2 Non-Trust Mortgage Loan.
"Courtyard by Marriott Note B Non-Trust Mortgage Loan" shall have the
meaning assigned thereto in the Preliminary Statement.
"Courtyard by Marriott Note B Non-Trust Mortgage Loan Noteholder"
shall mean the holder (or, if applicable, the collective holders) of the
Mortgage Note for the Courtyard by Marriott Note B Non-Trust Mortgage Loan.
"Courtyard by Marriott Noteholders" shall mean, collectively, the
holder of the Mortgage Note for the Courtyard by Marriott Trust Mortgage Loan,
together with the Courtyard by Marriott Non-Trust Mortgage Loan Noteholders.
"Courtyard by Marriott Servicer" shall mean the Courtyard by Marriott
Master Servicer or the Courtyard by Marriott Special Servicer.
"Courtyard by Marriott Servicing Agreement" shall have the meaning
assigned thereto in the Preliminary Statement.
"Courtyard by Marriott Special Servicer" shall have the meaning
assigned thereto in the Preliminary Statement.
"Courtyard by Marriott Trust Mortgage Loan" shall have the meaning
assigned thereto in the Preliminary Statement, which Trust Mortgage Loan is
identified on the Trust Mortgage Loan Schedule by loan number 4 and is, together
with the Courtyard by Marriott Non-Trust Mortgage Loans, secured by the same
Mortgage on the Courtyard by Marriott Mortgaged Property.
"Courtyard by Marriott Trustee" shall have the meaning assigned
thereto in the Preliminary Statement.
"Courtyard by Marriott Underlying Collection Period" shall mean, with
respect to any Distribution Date or Trust Master Servicer Remittance Date, the
"Loan Combination Collection Period" (within the meaning of the initial
Courtyard by Marriott Servicing Agreement) with respect to the Courtyard by
Marriott Loan Combination that ends in the calendar month in which such
Distribution Date or Trust Master Servicer Remittance Date, as the case may be,
occurs.
"Covered Costs" shall mean, with respect to any Trust Mortgage Loan
and any related costs and expenses that the Depositor or the UBS Mortgage Loan
Seller, as applicable, are otherwise required to pay pursuant to Section 2.03(d)
or the UBS/Depositor Mortgage Loan Purchase Agreement,
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(i) if such Trust Mortgage Loan has an original principal balance equal to or
less than $10,000,000, the entire amount of such costs and expenses, but only in
the event such costs and expenses exceed a threshold of $10,000, and (ii) if
such Trust Mortgage Loan has an original principal balance greater than
$10,000,000, the entire amount of such costs and expenses, but only in the event
such costs and expenses exceed a threshold of $25,000. In the case of each of
clauses (i) and (ii) above in this definition, in the event the subject costs
and expenses do not exceed the required threshold stated in the subject clause,
the "Covered Costs" shall be $0.
"Cross-Collateralized Group" shall mean any group of
Cross-Collateralized Mortgage Loans; provided that no Loan Combination shall
constitute a Cross-Collateralized Group.
"Cross-Collateralized Mortgage Loan" shall mean any Mortgage Loan that
is cross-defaulted and cross-collateralized with any other Mortgage Loan;
provided that none of the Mortgage Loans in a Loan Combination shall constitute
a Cross-Collateralized Mortgage Loan.
"Custodial Account" shall mean the Pool Custodial Account or any Loan
Combination Custodial Account.
"Custodian" shall mean a Person who is at any time appointed by the
Trustee pursuant to Section 8.11 as a document custodian for some or all of the
Mortgage Files, which Person shall not be the Depositor, a Mortgage Loan Seller
or an Affiliate of the Depositor or a Mortgage Loan Seller. If no such custodian
has been appointed, or if such custodian has been so appointed but the Trustee
shall have terminated such appointment, then the Trustee shall be the Custodian.
"Cut-off Date" shall mean, individually and collectively, as
applicable in the context used: (i) with respect to each Mortgage Loan that was
originated after August 11, 2005, the related date of origination of such
Mortgage Loan; and (ii) for every other Mortgage Loan, August 11, 2005.
"Cut-off Date Balance" shall mean, with respect to any Mortgage Loan,
the outstanding principal balance of such Mortgage Loan as of the Cut-off Date,
net of all unpaid payments of principal due in respect thereof on or before such
date.
"Default Charges" shall mean Default Interest and/or late payment
charges that are paid or payable, as the context may require, to the Trust (or,
if applicable, a Serviced Non-Trust Mortgage Loan Noteholder) in respect of any
Mortgage Loan or any successor REO Mortgage Loan with respect thereto.
"Default Interest" shall mean: (a) with respect to any Serviced
Mortgage Loan (or any successor REO Mortgage Loan with respect thereto), any
amounts collected thereon (other than late payment charges and Prepayment
Consideration) that represent penalty interest (arising out of a default) in
excess of (i) interest accrued on the principal balance of such Serviced
Mortgage Loan (or any successor REO Mortgage Loan with respect thereto), at the
related Mortgage Rate (net of any applicable Additional Interest Rate included
as part of such Mortgage Rate), and (ii) in the case of an ARD Mortgage Loan (or
any successor REO Trust Mortgage Loan with respect thereto) after the related
Anticipated Repayment Date, any Additional Interest; and (b) with respect to any
Outside Serviced Trust Mortgage Loan (or any successor REO Trust Mortgage Loan
with respect thereto), any amounts Received by the Trust thereon that represent
"Default Interest" as defined under the related Outside Servicing Agreement or,
if not defined therein, as defined under the related Co-Lender Agreement.
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"Defaulting Party" shall have the meaning assigned thereto in Section
7.01(b).
"Defeasance Certificate" shall have the meaning assigned thereto in
Section 3.20(k).
"Defeasance Collateral" shall mean, with respect to any Defeasance
Mortgage Loan, the Government Securities required or permitted to be pledged in
lieu of prepayment pursuant to the terms thereof in order to obtain a release of
the related Mortgaged Property.
"Defeasance Deposit Account" shall have the meaning assigned thereto
in Section 3.04(a).
"Defeasance Mortgage Loan" shall mean any Mortgage Loan that permits
the related Mortgagor to pledge Defeasance Collateral to the holder of such
Mortgage Loan in connection with obtaining the release of all or any portion of
the related Mortgaged Property (or permits the holder of such Mortgage Loan to
require the related Mortgagor to pledge Defeasance Collateral to the holder of
such Mortgage Loan in lieu of prepayment).
"Defeasance Serviced Trust Mortgage Loan" shall mean any Defeasance
Trust Mortgage Loan that is also a Serviced Trust Mortgage Loan.
"Defeasance Trust Mortgage Loan" shall mean any Trust Mortgage Loan
that is a Defeasance Mortgage Loan.
"Definitive Certificate" shall have the meaning assigned thereto in
Section 5.03(a).
"Definitive Non-Registered Certificate" shall mean any Non-Registered
Certificate that has been issued as a Definitive Certificate.
"Definitive Subordinate Certificate" shall mean any Subordinate
Certificate that has been issued as a Definitive Certificate.
"Depositor" shall mean SASCO II.
"Depositor Backup Certification" shall have the meaning assigned
thereto in Section 8.15(j).
"Depository" shall mean The Depository Trust Company or any successor
Depository hereafter named as contemplated by Section 5.03(c). The nominee of
the initial Depository for purposes of registering those Certificates that are
to be Book-Entry Certificates, is Cede & Co. The Depository shall at all times
be a "clearing corporation" as defined in Section 8-102(3) of the Uniform
Commercial Code of the State of New York and a "clearing agency" registered
pursuant to the provisions of Section 17A of the Exchange Act.
"Depository Participant" shall mean a broker, dealer, bank or other
financial institution or other Person for whom from time to time the Depository
effects book-entry transfers and pledges of securities deposited with the
Depository.
"Determination Date" shall mean, individually and collectively, as
applicable in the context used, (i) the related Loan Combination Determination
Date with respect to each Loan
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Combination and all related matters, and (ii) the Trust Determination Date with
respect to the Mortgage Pool (exclusive of those Trust Mortgage Loans and any
REO Trust Mortgage Loans that are part of a Loan Combination) and all related
matters.
"Directly Operate" shall mean, with respect to any Administered REO
Property, the furnishing or rendering of services to the tenants thereof, the
management or operation of such Administered REO Property, the holding of such
REO Property primarily for sale or lease, the performance of any construction
work thereon or any use of such Administered REO Property in a trade or business
conducted by REMIC I (or, if held thereby, any related Loan REMIC) other than
through an Independent Contractor; provided, however, that the Trustee (or the
Special Servicer or any Sub-Servicer on behalf of the Trustee) shall not be
considered to Directly Operate an Administered REO Property solely because the
Trustee (or the Special Servicer or any Sub-Servicer on behalf of the Trustee)
establishes rental terms, chooses tenants, enters into or renews leases, deals
with taxes and insurance, or makes decisions as to repairs or capital
expenditures with respect to such Administered REO Property.
"Discount Rate" shall mean, with respect to any prepaid Trust Mortgage
Loan or REO Trust Mortgage Loan, for purposes of allocating any Prepayment
Consideration Received by the Trust with respect thereto among the respective
Classes of the YM Principal Balance Certificates, a rate which, when compounded
monthly, is equivalent to the Yield Maintenance Treasury Rate, when compounded
semi-annually.
"Disqualified Non-United States Tax Person" shall mean, with respect
to any Residual Interest Certificate, any Non-United States Tax Person or agent
thereof other than: (1) a Non-United States Tax Person that (a) holds such
Residual Interest Certificate and, for purposes of Treasury regulations section
1.860G-3(a)(3), is subject to tax under Section 882 of the Code, (b) certifies
that it understands that, for purposes of Treasury regulations section
1.860E-1(c)(4)(ii), as a holder of such Residual Interest Certificate for United
States federal income tax purposes, it may incur tax liabilities in excess of
any cash flows generated by such Residual Interest Certificate and intends to
pay taxes associated with holding such Residual Interest Certificate, and (c)
has furnished the Transferor and the Trustee with an effective IRS Form W-8ECI
or successor form and has agreed to update such form as required under the
applicable Treasury regulations; or (2) a Non-United States Tax Person that has
delivered to the Transferor, the Trustee and the Certificate Registrar an
opinion of nationally recognized tax counsel to the effect that (x) the Transfer
of such Residual Interest Certificate to it is in accordance with the
requirements of the Code and the regulations promulgated thereunder and (y) such
Transfer of such Residual Interest Certificate will not be disregarded for
United States federal income tax purposes.
"Disqualified Organization" shall mean any of the following: (i) the
United States, any State or any political subdivision thereof, any foreign
government, international organization, or any agency or instrumentality of any
of the foregoing; (ii) any organization (except certain farmers' cooperatives
described in Section 521 of the Code) that 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 income); (iii) rural electric and
telephone cooperatives described in Section 1381 of the Code; or (iv) any other
Person so designated by the Trustee or the Tax Administrator based upon an
Opinion of Counsel that the holding of an Ownership Interest in a Residual
Interest Certificate by such Person may cause the Trust Fund 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
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imposed but for the Transfer of an Ownership Interest in a Residual Interest
Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
"Disqualified Partnership" shall mean any domestic entity classified
as a partnership under the Code if any of its beneficial owners are Disqualified
Non-United States Tax Persons.
"Distributable Certificate Interest" shall mean, with respect to any
Class of Regular Interest Certificates for any Distribution Date, subject to
Section 4.05(b), an amount of interest equal to (a) the amount of Accrued
Certificate Interest in respect of such Class of Certificates for the related
Interest Accrual Period, reduced (to not less than zero) by (b) that portion, if
any, of the Net Aggregate Prepayment Interest Shortfall for such Distribution
Date allocated to such Class of Certificates as provided below. For purposes of
the foregoing, the portion of the Net Aggregate Prepayment Interest Shortfall,
if any, for each Distribution Date that is allocable to each Class of Regular
Interest Certificates shall equal the lesser of (A) the amount of Accrued
Certificate Interest with respect to the subject Class of Regular Interest
Certificates for the related Interest Accrual Period and (B) the product of (1)
the entire amount of such Net Aggregate Prepayment Interest Shortfall,
multiplied by (2) a fraction, the numerator of which is equal to the amount of
Accrued Certificate Interest with respect to the subject Class of Regular
Interest Certificates for the related Interest Accrual Period, and the
denominator of which is equal to the aggregate amount of Accrued Certificate
Interest with respect to all the Classes of Regular Interest Certificates for
the related Interest Accrual Period.
"Distributable Component Interest" shall mean, with respect to any
REMIC III Component of either Class of Interest-Only Certificates for any
Distribution Date, subject to Section 4.05(b), an amount of interest equal to
(a) the amount of Accrued Component Interest in respect of such REMIC III
Component for the related Interest Accrual Period, reduced (to not less than
zero) by (b) the product of (i) the entire portion of any Net Aggregate
Prepayment Interest Shortfall for such Distribution Date that was allocated to
such Class of Interest-Only Certificates in accordance with the definition of
"Distributable Certificate Interest", multiplied by (ii) a fraction, the
numerator of which is the amount of any Accrued Component Interest in respect of
such REMIC III Component for the related Interest Accrual Period, and the
denominator of which is the amount of the Accrued Certificate Interest in
respect of such Class of Interest-Only Certificates for the related Interest
Accrual Period.
"Distribution Date" shall mean the date each month, commencing in
September 2005, on which, among other things, the Trustee is to make
distributions on the Certificates, which date shall be the fourth Business Day
following the Trust Determination Date in such calendar month.
"Distribution Date Statement" shall have the meaning assigned thereto
in Section 4.02(a).
"Document Defect" shall have the meaning assigned thereto in Section
2.03(a).
"Due Date" shall mean: (i) with respect to any Mortgage Loan on or
prior to its Stated Maturity Date, the day of the month set forth in the related
Mortgage Note on which each Monthly Payment on such Mortgage Loan is scheduled
to be first due; (ii) with respect to any Mortgage Loan after its Stated
Maturity Date, the day of the month set forth in the related Mortgage Note on
which each Monthly Payment on such Mortgage Loan had been scheduled to be first
due; and (iii) with respect to any REO Mortgage Loan, the day of the month set
forth in the related Mortgage Note on which each Monthly Payment on the related
Mortgage Loan had been scheduled to be first due.
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"Early Defeasance Trust Mortgage Loan" shall mean, subject to Section
2.06(b), any Trust Mortgage Loan that provides the related Mortgagor with the
option to defease such Trust Mortgage Loan in its entirety prior to the second
anniversary of the Closing Date. The Early Defeasance Trust Mortgage Loans, if
any, are identified on Schedule VII hereto. If Schedule VII hereto does not
identify any Trust Mortgage Loan as an Early Defeasance Trust Mortgage Loan,
then Section 2.06(b) shall apply.
"XXXXX" shall mean the Commission's Electronic Data Gathering,
Analysis and Retrieval system.
"Eligible Account" shall mean any of: (i) an account maintained with a
federal or state chartered depository institution or trust company, the
long-term deposit or unsecured debt obligations of which are rated at least
"AA-" (or, if such depository institution or trust company has short-term
unsecured debt obligations rated at least "A-1" by S&P, at least "A-") by S&P
and at least "AA-" by Fitch (or, in the case of either Rating Agency, such lower
rating as will not result in an Adverse Rating Event with respect to any Class
of Certificates that is rated by such Rating Agency, as evidenced in writing by
such Rating Agency) at any time funds are on deposit therein (if such funds are
to be held for more than 30 days), or the short-term deposits of which are rated
at least "A-1" by S&P and at least "F-1" by Fitch (or, in the case of either
Rating Agency, such lower rating as will not result in an Adverse Rating Event
with respect to any Class of Certificates that is rated by such Rating Agency,
as evidenced in writing by such Rating Agency) at any time funds are on deposit
therein (if such funds are to be held for 30 days or less); or (ii) a segregated
trust account maintained with the trust department of a federal or state
chartered depository institution or trust company acting in its fiduciary
capacity (which may be the Trustee), which has a combined capital and surplus of
at least $50,000,000, is subject to supervision or examination by federal or
state authority and, in the case of a state chartered depository institution or
trust company, is subject to regulations regarding fiduciary funds on deposit
therein substantially similar to 12 CFR Section 9.10(b); or (iii) any other
account, the use of which would not, in and of itself, cause an Adverse Rating
Event with respect to any Class of Certificates that is rated by either Rating
Agency, as evidenced in writing by such Rating Agency.
"Environmental Assessment" shall mean a "Phase I assessment" as
described in and meeting the criteria of Chapter 5 of the Xxxxxx Xxx Multifamily
Guide and the ASTM Standard for Environmental Site Assessments, each as amended
from time to time.
"Environmental Insurance Policy" shall mean, with respect to any
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 Mortgaged Property or REO Property, as the case may be,
for the benefit of, among others, the Trustee on behalf of the
Certificateholders.
"Environmentally Insured Mortgage Loans" shall mean the Serviced
Mortgage Loans identified on Schedule IV hereto.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"Escrow Payment" shall mean any payment received by the Master
Servicer or the Special Servicer for the account of any Mortgagor for
application toward the payment of real estate
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taxes, assessments, insurance premiums, ground rents (if applicable) and other
items for which an escrow has been created in respect of the related Mortgaged
Property.
"Euroclear" shall mean The Euroclear System or any successor.
"Event of Default" shall have the meaning assigned thereto in Section
7.01(a).
"Excess Defeasance Deposit Proceeds" shall mean, with respect to an
Early Defeasance Trust Mortgage Loan for which the related Mortgagor has
exercised its option to defease such Trust Mortgage Loan prior to the second
anniversary of the Closing Date, subject to Section 2.06(b), the excess, if any,
of any cash amount tendered by such Mortgagor in order to purchase Defeasance
Collateral or other permitted collateral for purposes of defeasing such Trust
Mortgage Loan in accordance with the related loan documents, over an amount
equal to, with respect to such Trust Mortgage Loan, the aggregate of the amounts
specified in clauses (a) through (e) of the definition of "Purchase Price" in
this Agreement.
"Excess Liquidation Proceeds" shall mean the excess, if any, of (a)
the Net Liquidation Proceeds from the sale or liquidation of a Specially
Serviced Trust Mortgage Loan or an Administered REO Property, net of (i)
interest on any related Advances, (ii) any related Servicing Advances, (iii) any
Liquidation Fee payable from such Net Liquidation Proceeds, and (iv) in the case
of a Trust Mortgage Loan that is part of, or an REO Property that relates to, a
Serviced Loan Combination, the portion of such Net Liquidation Proceeds payable
to the related Non-Trust Mortgage Loan Noteholder(s), over (b) the amount needed
to pay off the subject Trust Mortgage Loan or the related REO Trust Mortgage
Loan, as applicable, in full.
"Excess Liquidation Proceeds Account" shall mean the segregated
account or accounts (or the segregated sub-account of the Collection Account)
created and maintained by the Trustee pursuant to Section 3.04(d) in trust for
the Certificateholders, which shall be entitled "[NAME OF TRUSTEE], as Trustee,
in trust for the registered holders of LB-UBS Commercial Mortgage Trust 2005-C5,
Commercial Mortgage Pass-Through Certificates, Series 0000-X0".
"Xxxxxxxx Xxx" shall mean the Securities Exchange Act of 1934, as
amended.
"Exchange Act Reports" shall have the meaning assigned thereto in
Section 8.15(a).
"Exemption-Favored Party" shall mean any of (i) Xxxxxx Brothers, (ii)
any Person directly or indirectly, through one or more intermediaries,
controlling, controlled by or under common control with Xxxxxx Brothers, and
(iii) any member of any underwriting syndicate or selling group of which any
Person described in clauses (i) and (ii) is a manager or co-manager with respect
to a Class of Investment Grade Certificates.
"Xxxxxx Mae" shall mean the Federal National Mortgage Association or
any successor.
"FASB 140" shall mean the Financial Accounting Standards Board's
Statement No. 140, entitled "Accounting for Transfers and Servicing of Financial
Assets and Extinguishment of Liabilities", issued in September 2002.
"FDIC" shall mean the Federal Deposit Insurance Corporation or any
successor.
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"FHLMC" shall mean the Federal Home Loan Mortgage Corporation or any
successor.
"Final Distribution Date" shall mean the Distribution Date on which
the final distribution is to be made with respect to the Certificates in
connection with a termination of the Trust Fund pursuant to Article IX.
"Final Recovery Determination" shall mean a determination by the
Special Servicer with respect to any Specially Serviced Mortgage Loan or
Administered REO Property that there has been a recovery of all Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds and other payments or
recoveries that the Special Servicer has determined, in accordance with the
Servicing Standard, will be ultimately recoverable; provided that the term
"Final Recovery Determination" shall not apply to (i) a Specially Serviced
Mortgage Loan that was paid in full; or (ii) a Specially Serviced Trust Mortgage
Loan or Administered REO Property, as the case may be, that was the subject of a
Permitted Purchase; and provided, further, that the term "Final Recovery
Determination" shall include any comparable determination made with respect to
an Outside Serviced Trust Mortgage Loan or any related REO Property by the
related Outside Special Servicer pursuant to the related Outside Servicing
Agreement.
"Fiscal Agent" shall mean ABN AMRO, in its capacity as fiscal agent
hereunder, or any successor fiscal agent appointed as herein provided.
"Fitch" shall mean Fitch, Inc. or its successor in interest. If
neither such rating agency nor any successor remains in existence, "Fitch" shall
be deemed to refer to such other nationally recognized statistical rating agency
or other comparable Person designated by the Depositor, notice of which
designation shall be given to the Trustee, the Fiscal Agent, the Master Servicer
and the Special Servicer, and specific ratings of Fitch, Inc. herein referenced
shall be deemed to refer to the equivalent ratings of the party so designated.
"FV Bid" shall have the meaning assigned thereto in Section 3.18(d).
"FV Price" shall have the meaning assigned thereto in Section 3.18(c).
"GAAP" shall mean generally accepted accounting principles in the
United States of America.
"General Special Servicer" shall have the meaning assigned thereto in
Section 7.01(e).
"Global Certificate" shall mean, with respect to any Class of
Book-Entry Non-Registered Certificates, either the related Rule 144A Global
Certificate or the related Regulation S Global Certificate.
"Government Securities" shall mean "Government Securities" as defined
in Section 2(a)(16) of the Investment Company Act of 1940, excluding any such
securities that are not acceptable to either Rating Agency as Defeasance
Collateral.
"Grantor Trust" shall mean, subject to Section 2.05(b), that certain
"grantor trust" (within the meaning of the Grantor Trust Provisions) consisting
of the Grantor Trust Assets.
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"Grantor Trust Assets" shall mean, subject to Section 2.05(b), any
collections of Additional Interest Received by the Trust with respect to any ARD
Trust Mortgage Loans and any successor REO Trust Mortgage Loans with respect
thereto.
"Grantor Trust Provisions" shall mean Subpart E of Part 1 of
Subchapter J of the Code, including Treasury regulations section
301.7701-4(c)(2).
"Ground Lease" shall mean, with respect to any Mortgage Loan for which
the related Mortgagor has a leasehold interest in the related Mortgaged
Property, the lease agreement(s) (including any lease agreement with respect to
a master space lease) creating such leasehold interest.
"Group 1 Trust Mortgage Loan" shall mean any Trust Mortgage Loan
identified on the Trust Mortgage Loan Schedule as belonging to Loan Group No. 1.
"Group 2 Trust Mortgage Loan" shall mean any Trust Mortgage Loan
identified on the Trust Mortgage Loan Schedule as belonging to Loan Group No. 2.
"Hazardous Materials" shall mean any dangerous, toxic or hazardous
pollutants, chemicals, wastes, or substances, including those so identified
pursuant to CERCLA or any other federal, state or local environmental related
laws and regulations now existing or hereafter enacted, and specifically
including asbestos and asbestos-containing materials, polychlorinated biphenyls,
radon gas, petroleum and petroleum products and urea formaldehyde.
"Holder" shall mean a Certificateholder.
"HUD-Approved Servicer" shall mean a servicer that is a mortgagee
approved by the Secretary of Housing and Urban Development pursuant to Sections
203 and 211 of the National Housing Act.
"Independent" shall mean, when used with respect to any specified
Person, any such Person who (i) is in fact independent of the Depositor, each
Mortgage Loan Seller, the Master Servicer, the Special Servicer, any Controlling
Class Certificateholder, any Non-Trust Mortgage Loan Noteholder and any and all
Affiliates thereof, (ii) does not have any direct financial interest in or any
material indirect financial interest in any of the Depositor, any Mortgage Loan
Seller, the Master Servicer, the Special Servicer, any Controlling Class
Certificateholder, any Non-Trust Mortgage Loan Noteholder, or any Affiliate
thereof, and (iii) is not connected with the Depositor, any Mortgage Loan
Seller, the Master Servicer, the Special Servicer, any Controlling Class
Certificateholder, any Non-Trust Mortgage Loan Noteholder or any Affiliate
thereof as an officer, employee, promoter, underwriter, trustee, partner,
director or Person performing similar functions; provided, however, that a
Person shall not fail to be Independent of the Depositor, a Mortgage Loan
Seller, the Master Servicer, the Special Servicer, a Controlling Class
Certificateholder, a Non-Trust Mortgage Loan Noteholder or any Affiliate thereof
merely because such Person is the beneficial owner of 1% or less of any class of
securities issued by the Depositor, such Mortgage Loan Seller, the Master
Servicer, the Special Servicer, such Controlling Class Certificateholder, such
Non-Trust Mortgage Loan Noteholder or any Affiliate thereof, as the case may be;
provided that such ownership constitutes less than 1% of the total assets owned
by such Person.
"Independent Appraiser" shall mean an Independent professional real
estate appraiser who (i) is a member in good standing of the Appraisal
Institute, (ii) if the state in which the subject
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Mortgaged Property is located certifies or licenses appraisers, is certified or
licensed in such state, and (iii) has a minimum of five years experience in the
subject property type and market.
"Independent Contractor" shall mean: (a) any Person that would be an
"independent contractor" with respect to REMIC I (or, solely for purposes of an
Early Defeasance Trust Mortgage Loan or any corresponding REO Property, any
related Loan REMIC) within the meaning of Section 856(d)(3) of the Code if such
REMIC Pool were a real estate investment trust (except that the ownership test
set forth in that section shall be considered to be met by any Person that owns,
directly or indirectly, 35 percent or more of any Class of Certificates, or such
other interest in any Class of Certificates as is set forth in an Opinion of
Counsel, which shall be at no expense to the Master Servicer, the Special
Servicer, the Trustee or the Trust Fund, delivered to the Trustee (and, if a
Serviced Loan Combination is involved, to the related Serviced Non-Trust
Mortgage Loan Noteholder(s)), provided that (i) such REMIC Pool does not receive
or derive any income from such Person and (ii) the relationship between such
Person and such REMIC Pool is at arm's length, all within the meaning of
Treasury regulations section 1.856-4(b)(5); or (b) any other Person upon receipt
by the Trustee (and, if a Serviced Loan Combination is involved, by the related
Serviced Non-Trust Mortgage Loan Noteholder(s)) of an Opinion of Counsel, which
shall be at no expense to the Master Servicer, the Special Servicer, the Trustee
or the Trust Fund, to the effect that the taking of any action in respect of any
Administered REO Property by such Person, subject to any conditions therein
specified, that is otherwise herein contemplated to be taken by an Independent
Contractor, will not cause such Administered REO Property to cease to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code for
purposes of Section 860D(a) of the Code, or cause any income realized in respect
of such Administered REO Property to fail to qualify as Rents from Real
Property, due to such Person's failure to be treated as an Independent
Contractor.
"Initial Bidder" shall have the meaning assigned thereto in Section
3.18(d).
"Initial Deposit" shall mean, with respect to each Initial Deposit
Mortgage Loan, if any, the supplemental payment from the related Mortgage Loan
Seller identified on Schedule V hereto, in the amount specified for such Initial
Deposit Mortgage Loan on Schedule V hereto.
"Initial Deposit Mortgage Loans" shall mean each of the Trust Mortgage
Loans, if any, identified on Schedule V hereto.
"Initial Pool Balance" shall mean the aggregate of the Cut-off Date
Balances of all the Trust Mortgage Loans.
"Initial Resolution Period" shall have the meaning assigned thereto in
Section 2.03(a).
"Institutional Accredited Investor" or "IAI" shall mean an "accredited
investor" as defined in any of paragraphs (1), (2), (3) and (7) of Rule 501(a)
under the Securities Act or any entity in which all of the equity owners come
within such paragraphs.
"Insurance Policy" shall mean, with respect to any Mortgage Loan, any
hazard insurance policy, flood insurance policy, title policy, Environmental
Insurance Policy or other insurance policy that is maintained from time to time
in respect of such Mortgage Loan or the related Mortgaged Property.
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"Insurance Proceeds" shall mean the proceeds paid under any Insurance
Policy, to the extent such proceeds are not applied to the restoration of the
related Mortgaged Property, released to the Mortgagor, or any tenants or ground
lessors, as the case may be, pursuant to the terms of the related Mortgage or
lease, in accordance with the Servicing Standard.
"Insured Environmental Event" shall have the meaning assigned thereto
in Section 3.07(d).
"Interest Accrual Basis" shall mean the basis on which interest
accrues in respect of any Mortgage Loan, any REO Mortgage Loan, any Loan REMIC
Regular Interest, any REMIC I Regular Interest, any REMIC II Regular Interest,
any Class of Regular Interest Certificates or any particular REMIC III Component
of a Class of Interest-Only Certificates, in each case consisting of one of the
following: (i) a 360-day year consisting of twelve 30-day months; (ii) actual
number of days elapsed in a 360-day year; (iii) actual number of days elapsed in
a 365-day year; or (iv) actual number of days elapsed in an actual calendar year
(taking account of leap year).
"Interest Accrual Period" shall mean, with respect to any Distribution
Date, the period commencing on the 11th calendar day of the month immediately
preceding the month in which such Distribution Date occurs and ending on the
10th calendar day of the month in which such Distribution Date occurs.
"Interest-Only Certificates" shall mean, collectively, the Class X-CL
and Class X-CP Certificates.
"Interested Person" shall mean the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, any Certificateholder, or any
Affiliate of any such Person.
"Interest Reserve Account" shall mean the segregated account or
accounts (or the segregated sub-account of the Collection Account) created and
maintained by the Trustee pursuant to Section 3.04(c) in trust for
Certificateholders, which shall be entitled "[NAME OF TRUSTEE], as Trustee, in
trust for the registered holders of LB-UBS Commercial Mortgage Trust 2005-C5,
Commercial Mortgage Pass-Through Certificates, Series 2005-C5".
"Interest Reserve Amount" shall mean, with respect to each Interest
Reserve Mortgage Loan and Interest Reserve REO Mortgage Loan, for any
Distribution Date that occurs during February of 2006 or February of any year
thereafter or that occurs during January of 2006 or January of any year
thereafter that is not a leap year, an amount equal to one day's interest
accrued at the related Mortgage Rate (net of the related Additional Interest
Rate, in the case of an ARD Trust Mortgage Loan or any successor REO Trust
Mortgage Loan with respect thereto after the related Anticipated Repayment Date,
and net of the Actual/360 Equivalent of the related Outside Servicing Fee Rate,
in the case of an Outside Serviced Trust Mortgage Loan or any successor REO
Trust Mortgage Loan with respect thereto) on the related Stated Principal
Balance as of the Due Date in the month in which such Distribution Date occurs
(but prior to the application of any amounts due on such Due Date), to the
extent that a Monthly Payment or an Assumed Monthly Payment, as applicable, is
Received by the Trust in respect thereof for such Due Date as of the related
Determination Date or a P&I Advance is made under this Agreement in respect
thereof for such Due Date by such Distribution Date. For purposes of the prior
sentence, the term "Actual/360 Equivalent of the related Outside Servicing Fee
Rate" means a rate per annum equal to the product of (a) the subject Outside
Servicing Fee Rate, multiplied by (b) a fraction, expressed as a
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percentage, the numerator of which is 30 and the denominator of which is the
number of days in the related Interest Accrual Period.
"Interest Reserve Mortgage Loan" shall mean any Trust Mortgage Loan
that accrues interest on an Actual/360 Basis.
"Interest Reserve REO Mortgage Loan" shall mean any REO Trust Mortgage
Loan as to which the predecessor Trust Mortgage Loan was an Interest Reserve
Mortgage Loan.
"Investment Account" shall have the meaning assigned thereto in
Section 3.06(a).
"Investment Grade Certificate" shall mean, as of any date of
determination, a Certificate that is rated in one of the four highest generic
rating categories by at least one Rating Agency.
"Investment Period" shall mean: (a) with respect to any investment of
funds in any Master Servicer Account (other than a Custodial Account) or any REO
Account, the period that ends at the close of business (New York City time) on
each Trust Determination Date (or, if the subject Investment Account relates
solely to a Serviced Loan Combination, on each related Loan Combination
Determination Date) and commences immediately following the end of the prior
such period (or, in the case of the first such period, commences on the Closing
Date); (b) with respect to any investment of funds in the Pool Custodial
Account, the Interest Reserve Account or the Excess Liquidation Proceeds
Account, the period that ends at the close of business (New York City time) on
the Business Day prior to each Trust Master Servicer Remittance Date and
commences immediately following the end of the prior such period (or, in the
case of the first such period, commences on the Closing Date); (c) with respect
to any investment of funds in any Loan Combination Custodial Account, the period
that ends at the close of business (New York City time) on the Business Day
prior to each related Loan Combination Master Servicer Remittance Date and
commences immediately following the end of the prior such period (or, in the
case of the first such period, commences on the Closing Date); and (d) with
respect to any investment of funds in the Collection Account, the period that
ends at the close of business (New York City time) on each Trust Master Servicer
Remittance Date and commences immediately following the end of the prior such
period (or, in the case of the first such period, commences on the Closing
Date); provided that, if and to the extent that the depository institution
maintaining any REO Account, Custodial Account or Trustee Account is the obligor
on any investment of funds in such Investment Account, and if such funds are to
be transferred to another Investment Account or distributed to
Certificateholders or any Serviced Non-Trust Mortgage Loan Noteholder on the
Business Day following the end of any particular Investment Period (determined
without regard to this proviso) for such investment, then such Investment Period
shall be deemed extended through such time on such next succeeding Business Day
when such transfer or distribution is to occur.
"IRS" shall mean the Internal Revenue Service or any successor agency.
"LaSalle" shall mean LaSalle Bank National Association or its
successor in interest.
"Late Collections" shall mean: (a) with respect to any Trust Mortgage
Loan, all amounts Received by the Trust in connection therewith during any
related Collection Period, whether as payments, Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds or otherwise, which represent late collections of
the principal and/or interest portions of a Monthly Payment (other than a
Balloon Payment) or an Assumed Monthly Payment in respect of such Trust Mortgage
Loan due or
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deemed due on a Due Date in a previous related Collection Period, or on a Due
Date coinciding with or preceding the Cut-off Date, and not previously
recovered; and (b) with respect to any REO Trust Mortgage Loan, all amounts
Received by the Trust in connection with the related REO Property during any
related Collection Period, whether as Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds, REO Revenues or otherwise, which represent late
collections of the principal and/or interest portions of a Monthly Payment
(other than a Balloon Payment) or an Assumed Monthly Payment in respect of the
predecessor Trust Mortgage Loan, or the principal and/or interest portions of an
Assumed Monthly Payment in respect of such REO Trust Mortgage Loan, due or
deemed due on a Due Date in a previous related Collection Period and not
previously recovered.
"LBHI" shall mean Xxxxxx Brothers Holdings Inc. or its successor in
interest.
"LBHI/Depositor Mortgage Loan Purchase Agreement" shall mean that
certain Mortgage Loan Purchase Agreement dated as of August 15, 2005, between
LBHI and the Depositor.
"LBHI Trust Mortgage Loan" shall mean any Trust Mortgage Loan
transferred by LBHI to the Depositor, pursuant to the LBHI/Depositor Mortgage
Loan Purchase Agreement.
"LB-UBS Series 2005-C3 Certificates" shall have the meaning assigned
thereto in the Preliminary Statement.
"LB-UBS Series 2005-C3 Securitization" shall have the meaning assigned
thereto in the Preliminary Statement.
"Legal Final Distribution Date" shall mean, with respect to any Loan
REMIC Regular Interest, any REMIC I Regular Interest, any REMIC II Regular
Interest, any Class of Regular Interest Certificates or any particular REMIC III
Component of a Class of Interest-Only Certificates, the "latest possible
maturity date" thereof, calculated solely for purposes of satisfying Treasury
regulations section 1.860G-1(a)(4)(iii).
"Xxxxxx Brothers" shall mean Xxxxxx Brothers Inc. or its successor in
interest.
"Xxxxxx Mortgage Loan Seller" shall mean: (a) LBHI in matters relating
to a LBHI Trust Mortgage Loan; and (b) LUBS in matters relating to a LUBS Trust
Mortgage Loan.
"Xxxxxx Trust Mortgage Loan" shall mean any LBHI Trust Mortgage Loan
or LUBS Trust Mortgage Loan, as applicable.
"Liquidation Event" shall mean: (a) with respect to any Trust Mortgage
Loan or Serviced Non-Trust Mortgage Loan, any of the following events--(i) such
Mortgage Loan is paid in full, (ii) a Final Recovery Determination is made with
respect to such Mortgage Loan, or (iii) in the case of a Trust Mortgage Loan,
such Mortgage Loan is the subject of a Permitted Purchase; and (b) with respect
to any REO Property (and the related REO Mortgage Loan(s)), any of the following
events--(i) a Final Recovery Determination is made with respect to such REO
Property, or (ii) such REO Property is the subject of a Permitted Purchase.
"Liquidation Expenses" shall mean all customary, reasonable and
necessary "out-of-pocket" costs and expenses due and owing (but not otherwise
covered by Servicing Advances) in
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connection with the liquidation of any Specially Serviced Mortgage Loan pursuant
to Section 3.09 or in connection with the sale of a Specially Serviced Mortgage
Loan or an Administered REO Property in accordance with Section 3.18, or in
connection with the final payoff of a Corrected Mortgage Loan (including legal
fees and expenses, committee or referee fees and, if applicable, brokerage
commissions and conveyance taxes).
"Liquidation Fee" shall mean the fee designated as such in, and
payable to the Special Servicer in connection with certain specified events in
respect of a Specially Serviced Mortgage Loan or an Administered REO Property
pursuant to, Section 3.11(c).
"Liquidation Fee Rate" shall mean, with respect to each Specially
Serviced Mortgage Loan or Administered REO Property as to which a Liquidation
Fee is payable, 1.0%.
"Liquidation Proceeds" shall mean all cash amounts (other than
Insurance Proceeds, Condemnation Proceeds and REO Revenues) Received by the
Trust (or, in the case of a Serviced Loan Combination or any related
Administered REO Property, collected on behalf of the Trust and/or the related
Serviced Non-Trust Mortgage Loan Noteholder(s)) in connection with: (i) the full
or partial liquidation of a Mortgaged Property or other collateral constituting
security for a defaulted Mortgage Loan, through trustee's sale, foreclosure
sale, REO Disposition or otherwise, exclusive of any portion thereof required to
be released to the related Mortgagor in accordance with applicable law and the
terms and conditions of the related Mortgage Note and Mortgage; (ii) the
realization upon any deficiency judgment obtained against a Mortgagor; (iii) a
Permitted Purchase; or (iv) except for purposes of Section 3.11(c), the transfer
of any Loss of Value Payments from the Loss of Value Reserve Fund, or the
deposit of any other payments contemplated by Section 2.03(d), in any event to
the Pool Custodial Account.
"LNR" shall mean LNR Partners, Inc. or its successor in interest.
"Loan Combination" shall mean any group of two or more mortgage loans,
at least one of which mortgage loans is included in the Trust Fund and at least
one of which mortgage loans is not included in the Trust Fund, and all of which
mortgage loans are secured by the same Mortgage(s) on the same Mortgaged
Property or Properties, as applicable. The Loan Combinations are the 000 Xxxx
Xxxxxx Loan Combination, the Courtyard by Marriott Loan Combination, the 1345
Avenue of the Americas Loan Combination, the Park Avenue Plaza Loan Combination,
the 000 Xxxx Xxxxxxx Loan Combination and the other Serviced A/B Loan
Combinations.
"Loan Combination Collection Period" shall mean, individually and
collectively, as applicable in the context used, (i) the 000 Xxxx Xxxxxx
Collection Period with respect to the 000 Xxxx Xxxxxx Loan Combination and all
related matters, (ii) the Courtyard by Marriott Collection Period with respect
to the Courtyard by Marriott Loan Combination and all related matters, (iii) the
1345 Avenue of the Americas Collection Period with respect to the 1345 Avenue of
the Americas Loan Combination and all related matters, (iv) the Park Avenue
Plaza Collection Period with respect to the Park Avenue Plaza Loan Combination
and all related matters, and (v) the Trust Collection Period with respect to
each other Loan Combination and all related matters.
"Loan Combination Custodial Account" shall mean, with respect to each
Serviced Loan Combination, the segregated account or accounts created and
maintained by the Master Servicer pursuant to Section 3.04A on behalf of the
holders of the Mortgage Loans included in such Serviced
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Loan Combination, which shall be entitled "[NAME OF MASTER SERVICER], as Master
Servicer, in trust for [NAMES OF RELATED MORTGAGE NOTEHOLDERS], as their
interests may appear".
"Loan Combination Determination Date" shall mean, individually and
collectively, as applicable in the context used, (i) the 000 Xxxx Xxxxxx
Determination Date with respect to the 000 Xxxx Xxxxxx Loan Combination and all
related matters, (ii) the Courtyard by Marriott Determination Date with respect
to the Courtyard by Marriott Loan Combination and all related matters, (iii) the
1345 Avenue of the Americas Determination Date with respect to the 1345 Avenue
of the Americas Loan Combination and all related matters, (iv) the Park Avenue
Plaza Determination Date with respect to the Park Avenue Plaza Loan Combination
and all related matters, (v) 000 Xxxx Xxxxxxx Determination Date with respect to
the 000 Xxxx Xxxxxxx Loan Combination and all related matters, and (vi) the
Trust Determination Date with respect to each other Loan Combination and all
related matters.
"Loan Combination Master Servicer Remittance Date" shall mean, with
respect to any Serviced Loan Combination, the date of each month, commencing in
September 2005, on which, among other things, the Master Servicer is required to
make normal monthly remittances to the related Serviced Non-Trust Mortgage Loan
Noteholder(s), which date shall be the Business Day immediately preceding the
Distribution Date in such month.
"Loan Combination REO Account" shall mean, with respect to each
Serviced Loan Combination, the segregated account or accounts created and
maintained by the Special Servicer pursuant to Section 3.16 on behalf of the
holders of the Mortgage Loans included in such Serviced Loan Combination, which
shall be entitled "[NAME OF SPECIAL SERVICER], as Special Servicer, in trust for
[NAMES OF RELATED MORTGAGE NOTEHOLDERS], as their interests may appear".
"Loan Combination Servicing Reports" shall mean, with respect to each
Serviced Loan Combination, each of the CMSA Delinquent Loan Status Report, CMSA
Historical Loan Modification and Corrected Mortgage Loan Report, CMSA Advance
Recovery Report, CMSA Loan Level Reserve/LOC Reserve, CMSA Historical
Liquidation Report, CMSA REO Status Report, Loan Payoff Notification Report,
CMSA Loan Periodic Update File, CMSA Property File, CMSA Financial File, CMSA
Loan Setup File, CMSA Servicer Watch List, CMSA Operating Statement Analysis,
CMSA NOI Adjustment Worksheet and CMSA Comparative Financial Status Report, each
as may be modified to reflect the fact that only the related Mortgaged Property
or Properties or any related REO Property or Properties, as the case may be,
shall be the subject of such report.
"Loan Combination-Specific Special Servicer" shall have the meaning
assigned thereto in Section 7.01(e).
"Loan Group" shall mean either of Loan Group No. 1 or Loan Group No.
2.
"Loan Group No. 1" shall mean, collectively, all of the Trust Mortgage
Loans that are Group 1 Trust Mortgage Loans and any successor REO Trust Mortgage
Loans with respect thereto.
"Loan Group No. 2" shall mean, collectively, all of the Trust Mortgage
Loans that are Group 2 Trust Mortgage Loans and any successor REO Trust Mortgage
Loans with respect thereto.
"Loan Payoff Notification Report" shall mean a report containing
substantially the information described in Exhibit E attached hereto, and
setting forth for each Serviced Mortgage Loan
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as to which written notice of anticipated payoff has been received by the Master
Servicer as of the related Determination Date preceding the delivery of such
report, among other things, the loan number, the property name, the ending
scheduled loan balance for the related Collection Period ending on such
Determination Date, the expected date of payment, the expected related
Distribution Date and the estimated amount of the Prepayment Consideration due
(if any).
"Loan REMIC" shall mean, with respect to any Early Defeasance Trust
Mortgage Loan, subject to Section 2.06(b), the segregated pool of assets, as to
which a separate REMIC election is to be made, consisting of: (i) such Trust
Mortgage Loan (for so long as it is subject to this Agreement) and all payments
under and proceeds of such Trust Mortgage Loan Received by the Trust after the
Closing Date (other than scheduled payments of interest and principal due on or
before the Cut-off Date), together with all documents included in the related
Mortgage File; (ii) any REO Property acquired in respect of such Trust Mortgage
Loan (for so long as it is subject to this Agreement) and all income and
proceeds therefrom; (iii) such funds or assets as from time to time are
deposited in the Pool Custodial Account, the Collection Account, the Interest
Reserve Account and, if established, the Pool REO Account with respect to such
Trust Mortgage Loan or any related REO Property; and (iv) insofar as they relate
to such Trust Mortgage Loan or any related REO Property, the rights of the
Depositor under the UBS/Depositor Mortgage Loan Purchase Agreement (but only if
such Trust Mortgage Loan is a UBS Trust Mortgage Loan); provided that none of
the Loan REMICs shall include (x) any collections of Additional Interest or (y)
the Loss of Value Reserve Fund or any amounts on deposit therein.
"Loan REMIC Interest" shall mean, subject to Section 2.06(b), either a
Loan REMIC Regular Interest or a Loan REMIC Residual Interest.
"Loan REMIC Regular Interest" shall mean, subject to Section 2.06(b),
the uncertificated "regular interest" within the meaning of Section 860G(a)(1)
of the Code, in a Loan REMIC.
"Loan REMIC Remittance Rate" shall mean: (a) with respect to any Loan
REMIC Regular Interest that, as of the Closing Date, corresponds to a Trust
Mortgage Loan that accrues interest on a 30/360 Basis, a rate per annum that is,
for any Interest Accrual Period, equal to (i) the Mortgage Rate in effect for
such corresponding Trust Mortgage Loan as of the Closing Date (without regard to
any modifications, extensions, waivers or amendments of such corresponding Trust
Mortgage Loan subsequent to the Closing Date), minus (ii) the Administrative
Cost Rate for such corresponding Trust Mortgage Loan (or any successor REO Trust
Mortgage Loan with respect thereto); and (b) with respect to any Loan REMIC
Regular Interest that, as of the Closing Date, corresponds to a Trust Mortgage
Loan that accrues interest on an Actual/360 Basis, a rate per annum that is, for
any Interest Accrual Period, equal to (i) a fraction (expressed as a
percentage), the numerator of which is the product of 12 times the Adjusted
Actual/360 Accrued Interest Amount with respect to such Loan REMIC Regular
Interest for such Interest Accrual Period, and the denominator of which is the
Uncertificated Principal Balance of such Loan REMIC Regular Interest immediately
prior to the Distribution Date that corresponds to such Interest Accrual Period,
minus (ii) the Administrative Cost Rate for the corresponding Trust Mortgage
Loan (or any successor REO Trust Mortgage Loan with respect thereto).
"Loan REMIC Residual Interest" shall mean, subject to Section 2.06(b),
the sole uncertificated "residual interest", within the meaning of Section
860G(a)(2) of the Code, in each Loan REMIC.
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"Lockout Period" shall mean, with respect to any Mortgage Loan that
prohibits the Mortgagor from prepaying such loan until a date specified in the
related Mortgage Note or other loan document, the period from the Closing Date
until such specified date.
"Loss of Value Payment" shall have the meaning assigned thereto under
Section 2.03(e).
"Loss of Value Reserve Fund" shall mean the account or accounts
created and maintained by the Special Servicer pursuant to Section 3.04(e) on
behalf of the Trustee in trust for the Certificateholders, which shall be
entitled "[NAME OF SPECIAL SERVICER], as Special Servicer, on behalf of [NAME OF
TRUSTEE], as Trustee, in trust for the registered holders of LB-UBS Commercial
Mortgage Trust 2005-C5, Commercial Mortgage Pass-Through Certificates, Series
2005-C5, Loss of Value Reserve Fund". The Loss of Value Reserve Fund shall be
designated as an "outside reserve fund" (within the meaning of Treasury
regulations section 1.860G-2(h)), pursuant to Section 2.05(b). The Loss of Value
Reserve Fund will be part of the Trust Fund but not part of the Grantor Trust
(if created hereunder taking into account Section 2.05(b)) or any REMIC Pool.
"Loss Reimbursement Amount" shall mean:
(a) with respect to any Loan REMIC Regular Interest, for any
Distribution Date, the excess, if any, of (i) the total amount of all
reductions, if any, made in the related Uncertificated Principal Balance
(without any corresponding deemed distribution of principal) on all prior
Distribution Dates, if any, pursuant to Section 4.04(d), over (ii) the
total amount reimbursed to REMIC I with respect to any Loss Reimbursement
Amount for such Loan REMIC Regular Interest on all prior Distribution
Dates, if any, pursuant to Section 4.01(n);
(b) with respect to any REMIC I Regular Interest, for any Distribution
Date, the excess, if any, of (i) the total amount of all reductions, if
any, made in the related Uncertificated Principal Balance (without any
corresponding deemed distribution of principal) on all prior Distribution
Dates, if any, pursuant to Section 4.04(c), over (ii) the total amount
reimbursed to REMIC II with respect to any Loss Reimbursement Amount for
such REMIC I Regular Interest on all prior Distribution Dates, if any,
pursuant to Section 4.01(m);
(c) with respect to any REMIC II Regular Interest, for any
Distribution Date, the excess, if any, of (i) the total amount of all
reductions, if any, made in the related Uncertificated Principal Balance
(without any corresponding deemed distribution of principal) on all prior
Distribution Dates, if any, pursuant to Section 4.04(b), over (ii) the sum
of (A) the total amount reimbursed to REMIC III with respect to any Loss
Reimbursement Amount for such REMIC II Regular Interest on all prior
Distribution Dates, if any, pursuant to Section 4.01(l), plus (B) the total
amount reinstated to the Uncertificated Principal Balance of such REMIC II
Regular Interest on all prior Distribution Dates, if any, pursuant to
Section 4.05(c); and
(d) with respect to any Class of Principal Balance Certificates, for
any Distribution Date, the excess, if any, of (i) the total amount of all
reductions, if any, made in the related Class Principal Balance (without
any corresponding distribution of principal) on all prior Distribution
Dates, if any, pursuant to Section 4.04(a), over (ii) the sum of (A) the
total amount of such reductions reimbursed to the Holders of such Class of
Certificates with respect to any related Loss Reimbursement Amount on all
prior Distribution Dates, if any, pursuant to Section 4.01(a) or Section
4.01(b), as applicable, plus (B) the total amount of such reductions
reinstated to the
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Class Principal Balance of such Class of Certificates on all prior
Distribution Dates, if any, pursuant to Section 4.05(a).
"LUBS" shall mean LUBS, Inc.
"LUBS/Depositor Mortgage Loan Purchase Agreement" shall mean that
certain Mortgage Loan Purchase Agreement dated as of August 15, 2005, between
LUBS as mortgage loan seller, LBHI as an additional party and the Depositor.
"LUBS Trust Mortgage Loans" shall mean any Trust Mortgage Loan
transferred by LUBS to the Depositor, pursuant to the LUBS/Depositor Mortgage
Loan Purchase Agreement.
"Majority Controlling Class Certificateholder(s)" shall mean any
single Holder or group of Holders (or any single Certificate Owner or group of
Certificate Owners) of Certificates evidencing a majority of the Voting Rights
allocated to the Controlling Class.
"Master Servicer" shall mean Wachovia, in its capacity as master
servicer hereunder, or any successor master servicer appointed as herein
provided.
"Master Servicer Account" shall have the meaning assigned thereto in
Section 3.06(a).
"Master Servicer Backup Certification" shall have the meaning assigned
thereto in Section 8.15(h).
"Master Servicer Certification" shall have the meaning assigned
thereto in Section 2.01(d).
"Master Servicer Remittance Amount" shall mean, with respect to any
Trust Master Servicer Remittance Date, an amount equal to: (a) the aggregate
amount of all payments and other collections on or with respect to the Trust
Mortgage Loans and any related REO Properties (including Loss of Value Payments
and, in the case of the initial Distribution Date, any Initial Deposits) that
(i) were Received by the Trust as of the close of business on the immediately
preceding applicable Determination Date and (ii) are on deposit or are required
to be on deposit in the Pool Custodial Account as of 12:00 noon (New York City
time) on such Trust Master Servicer Remittance Date, including any such payments
and other collections transferred or required to be transferred to the Pool
Custodial Account from the Pool REO Account (if established) and/or a Loan
Combination Custodial Account, net of (b) the portion of the aggregate amount
described in clause (a) of this definition that represents one or more of the
following--(i) scheduled Monthly Payments that are due on a Due Date following
the end of the related Collection Period (or, in the case of a scheduled Monthly
Payment that is due on a Due Date in the same month as such Trust Master
Servicer Remittance Date but subsequent to the end of the related Collection
Period, following the end of the calendar month in which such Trust Master
Servicer Remittance Date occurs), (ii) any amount payable or reimbursable to any
Person from the Pool Custodial Account pursuant to clauses (ii) through (xviii)
of Section 3.05(a), (iii) any Excess Liquidation Proceeds and (iv) any amounts
deposited in the Pool Custodial Account in error.
"Master Servicer Remittance Date" shall mean, individually and
collectively, as applicable in the context used, (i) the related Loan
Combination Master Servicer Remittance Date with respect to each Serviced Loan
Combination and all related matters, and (ii) the Trust Master Servicer
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Remittance Date with respect to the Mortgage Pool (exclusive of the Serviced
Combination Trust Mortgage Loans and any REO Trust Mortgage Loans with respect
to the Serviced Combination Trust Mortgage Loans) and all related matters.
"Master Servicing Fee" shall mean, with respect to each Serviced
Mortgage Loan (and any REO Mortgage Loan with respect thereto) and each Outside
Serviced Trust Mortgage Loan (and any successor REO Trust Mortgage Loan with
respect thereto), the fee designated as such and payable to the Master Servicer
pursuant to Section 3.11(a).
"Master Servicing Fee Rate" shall mean: (a) with respect to each
Serviced Trust Mortgage Loan (and any successor REO Trust Mortgage Loan with
respect thereto), a rate per annum equal to the related Administrative Cost Rate
minus the Trustee Fee Rate; (b) with respect to each Outside Serviced Trust
Mortgage Loan (and any successor REO Trust Mortgage Loan with respect thereto),
0.01% per annum; and (c) with respect to each Serviced Non-Trust Mortgage Loan
(and any successor REO Mortgage Loan with respect thereto), 0.01% per annum.
"Material Breach" shall have the meaning assigned thereto in Section
2.03(a).
"Material Document Defect" shall have the meaning assigned thereto in
Section 2.03(a).
"Maturity Date" shall mean, with respect to any Mortgage Loan as of
any date of determination, the Due Date on which the last payment of principal
is due and payable under the terms of the related Mortgage Note, as such terms
may be changed or modified from time to time in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, extension,
waiver or amendment of such Mortgage Loan granted or agreed to by he Special
Servicer (or the Master Servicer, if applicable) pursuant to Section 3.20.
"Modified Loan" shall mean any Serviced Mortgage Loan as to which any
Servicing Transfer Event has occurred and which has been modified by the Special
Servicer pursuant to Section 3.20 in a manner that:
(a) affects the amount or timing of any payment of principal or
interest due thereon (other than, or in addition to, bringing Monthly
Payments current with respect to such Mortgage Loan);
(b) except as expressly contemplated by the related loan documents,
results in a release of the lien of the related Mortgage on any material
portion of the related Mortgaged Property without a corresponding Principal
Prepayment in an amount, or the delivery of substitute real property
collateral with a fair market value (as is), that is not less than the fair
market value (as is) of the property to be released, as determined by an
appraisal delivered to the Special Servicer (at the expense of the related
Mortgagor and upon which the Special Servicer may conclusively rely); or
(c) in the reasonable, good faith judgment of the Special Servicer,
otherwise materially impairs the security for such Mortgage Loan or
materially reduces the likelihood of timely payment of amounts due thereon.
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"Monthly Payment" shall mean, with respect to any Trust Mortgage Loan
or Serviced Non-Trust Mortgage Loan, as of any Due Date, the scheduled monthly
debt service payment (or, in the case of an ARD Mortgage Loan after its
Anticipated Repayment Date, the monthly debt service payment required to be paid
on a current basis) on such Mortgage Loan that is actually payable by the
related Mortgagor from time to time under the terms of the related Mortgage Note
(as such terms may be changed or modified in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or by reason of a
modification, extension, waiver or amendment granted or agreed to by the Special
Servicer pursuant to Section 3.20 (or, in the case of an Outside Serviced Trust
Mortgage Loan, by the applicable Outside Servicer pursuant to the related
Outside Servicing Agreement), including any Balloon Payment payable in respect
of such Mortgage Loan on such Due Date; provided that the Monthly Payment due in
respect of any Mortgage Loan shall not include Default Interest; and provided,
further, that the Monthly Payment due in respect of any ARD Mortgage Loan after
its Anticipated Repayment Date shall not include Additional Interest; and
provided, further, that if the related loan documents for any Serviced Loan
Combination provide for a single monthly debt service payment for the entire
such Loan Combination, then the Monthly Payment for each Mortgage Loan
comprising such Loan Combination for any Due Date shall be that portion of the
monthly debt service payment for such Loan Combination and such Due Date that
is, in accordance with the related loan documents and/or the related Co-Lender
Agreement, in the absence of default, allocable to interest at the related
Mortgage Rate on and/or principal of the subject Mortgage Loan comprising such
Loan Combination.
"Xxxxx'x" shall mean Xxxxx'x Investors Service, Inc. or its successor
in interest.
"Mortgage" shall mean, with respect to any Mortgage Loan, the
mortgage, deed of trust, deed to secure debt or similar instrument that secures
such Mortgage Loan and creates a lien on the related Mortgaged Property.
"Mortgage File" shall mean:
(a) with respect to any Serviced Trust Mortgage Loan and, in the case
of each Serviced Loan Combination, also with respect to each Serviced
Non-Trust Mortgage Loan that is part of such Loan Combination, the
following documents collectively (which, in the case of each Serviced Loan
Combination, except for the Mortgage Notes referred to in clause (a)(i) of
this definition and any modifications thereof referred to in clause
(a)(xiii) of this definition, relate to the entire such Loan Combination):
(i) (A) the original executed Mortgage Note for such Trust Mortgage
Loan, endorsed (without recourse, representation or warranty,
express or implied) to the order of "LaSalle Bank National
Association, as trustee for the registered holders of LB-UBS
Commercial Mortgage Trust 2005-C5, Commercial Mortgage
Pass-Through Certificates, Series 2005-C5" or in blank, and
further showing a complete, unbroken chain of endorsement from
the originator (if such originator is other than the related
Mortgage Loan Seller) (or, alternatively, if the original
executed Mortgage Note has been lost, a lost note affidavit and
indemnity with a copy of such Mortgage Note), and (B) in the case
of each Serviced Loan Combination, a copy of the executed
Mortgage Note for each Serviced Non-Trust Mortgage Loan in such
Loan Combination;
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(ii) an original or a copy of the Mortgage, together with originals or
copies of any and all intervening assignments thereof, in each
case (unless the particular item has not been returned from the
applicable recording office) with evidence of recording indicated
thereon;
(iii) an original or a copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage), together
with originals or copies of any and all intervening assignments
thereof, in each case (unless the particular item has not been
returned from the applicable recording office) with evidence of
recording indicated thereon;
(iv) an original executed assignment, in recordable form (except for
recording information not yet available if the instrument being
assigned has not been returned from the applicable recording
office), of (A) the Mortgage and (B) any related Assignment of
Leases (if such item is a document separate from the Mortgage),
in favor of "LaSalle Bank National Association, in its capacity
as trustee for the registered holders of LB-UBS Commercial
Mortgage Trust 2005-C5, Commercial Mortgage Pass-Through
Certificates, Series 2005-C5" (or, in the case of a Serviced Loan
Combination, in favor of "LaSalle Bank National Association, in
its capacity as trustee for the registered holders of LB-UBS
Commercial Mortgage Trust 2005-C5, Commercial Mortgage
Pass-Through Certificates, Series 2005-C5, and in its capacity as
lead lender on behalf of the [IDENTIFY RELATED SERVICED NON-TRUST
MORTGAGE LOAN NOTEHOLDER(S)]") (or, in each case, a copy thereof,
certified to be the copy of such assignment submitted for
recording);
(v) an original or a copy of the assignment of all unrecorded
documents relating to such Trust Mortgage Loan, in favor of
"LaSalle Bank National Association, as trustee for the registered
holders of LB-UBS Commercial Mortgage Trust 2005-C5, Commercial
Mortgage Pass-Through Certificates, Series 2005-C5" (or, in the
case of a Serviced Loan Combination, in favor of "LaSalle Bank
National Association, in its capacity as trustee for the
registered holders of LB-UBS Commercial Mortgage Trust 2005-C5,
Commercial Mortgage Pass-Through Certificates, Series 2005-C5,
and in its capacity as lead lender on behalf of the [IDENTIFY
RELATED SERVICED NON-TRUST MORTGAGE LOAN NOTEHOLDER(S)]");
(vi) the original or a copy of the policy or certificate of lender's
title insurance issued in connection with such Trust Mortgage
Loan (or, if such policy has not been issued, a "marked-up" pro
forma title policy marked as binding and countersigned by the
title insurer or its authorized agent, or an irrevocable, binding
commitment to issue such title insurance policy);
(vii) an original or a copy of the Ground Lease relating to such Trust
Mortgage Loan, if any;
(viii) an original or a copy of the loan agreement for such Trust
Mortgage Loan, if any;
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(ix) an original of the related guaranty of payment under such Trust
Mortgage Loan, if any;
(x) an original or a copy of the environmental indemnity from the
related Mortgagor, if any;
(xi) an original or a copy of the lock-box agreement or cash
management agreement relating to such Trust Mortgage Loan, if
any;
(xii) a copy of the original letter of credit in connection with such
Trust Mortgage Loan, if any;
(xiii) originals or copies of final written modification agreements in
those instances where the terms or provisions of the Mortgage
Note for such Trust Mortgage Loan (and/or, if applicable, the
Mortgage Note for a related Serviced Non-Trust Mortgage Loan) or
the related Mortgage have been modified as to a monetary term or
other material term thereof, in each case (unless the particular
item has not been returned from the applicable recording office)
with evidence of recording indicated thereon if the instrument
being modified is a recordable document;
(xiv) only if such Trust Mortgage Loan is secured by a nursing
facility or hospitality property as identified on Schedule VI
hereto, filed copies (with evidence of filing) of any prior
effective UCC Financing Statements in favor of the originator of
such Trust Mortgage Loan or in favor of any assignee prior to the
Trustee (but only to the extent the related Mortgage Loan Seller
had possession of such UCC Financing Statements prior to the
Closing Date) and an original assignment thereof, as appropriate,
in form suitable for filing, in favor of "LaSalle Bank National
Association, in its capacity as trustee for the registered
holders of LB-UBS Commercial Mortgage Trust 2005-C5, Commercial
Mortgage Pass-Through Certificates, Series 2005-C5" (or, in the
case of a Serviced Loan Combination, in favor of "LaSalle Bank
National Association, in its capacity as trustee for the
registered holders of LB-UBS Commercial Mortgage Trust 2005-C5,
Commercial Mortgage Pass-Through Certificates, Series 2005-C5,
and in its capacity as lead lender on behalf of the [IDENTIFY
RELATED SERVICED NON-TRUST MORTGAGE LOAN NOTEHOLDER(S)]");
(xv) an original or a copy of the related security agreement (if such
item is a document separate from the Mortgage) and, if
applicable, the originals or copies of any intervening
assignments thereof;
(xvi) an original assignment of the related security agreement (if
such item is a document separate from the Mortgage and if such
item is not included in the assignment described in clause
(a)(iv) or clause (a)(v) of this definition), in favor of
"LaSalle Bank National Association, in its capacity as trustee
for the registered holders of LB-UBS Commercial Mortgage Trust
2005-C5, Commercial Mortgage Pass-Through Certificates, Series
2005-C5" (or, in the case of a Serviced Loan Combination, in
favor of "LaSalle Bank National Association, in its capacity as
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trustee for the registered holders of LB-UBS Commercial Mortgage
Trust 2005-C5, Commercial Mortgage Pass-Through Certificates,
Series 2005-C5, and in its capacity as lead lender on behalf of
the [IDENTIFY RELATED SERVICED NON-TRUST MORTGAGE LOAN
NOTEHOLDER(S)]");
(xvii) if such Trust Mortgage Loan is a Serviced Combination Trust
Mortgage Loan, a copy of the related Co-Lender Agreement;
(xviii) in the case of any Trust Mortgage Loan as to which there
exists a related mezzanine loan, the related intercreditor
agreement;
(xix) an original or a copy of any related Environmental Insurance
Policy; and
(xx) with respect to hospitality properties, a signed copy of the
franchise agreement (if any) and franchisor comfort letter (if
any); and
(b) with respect to each Outside Serviced Trust Mortgage Loan, the
following documents collectively:
(i) the original executed Mortgage Note for such Trust Mortgage
Loan, endorsed (without recourse, representation or
warranty, express or implied) to the order of "LaSalle Bank
National Association, as trustee for the registered holders
of LB-UBS Commercial Mortgage Trust 2005-C5, Commercial
Mortgage Pass-Through Certificates, Series 2005-C5" or in
blank, and further showing a complete, unbroken chain of
endorsement from the originator (if such originator is other
than the related Mortgage Loan Seller) (or, alternatively,
if the original executed Mortgage Note has been lost, a lost
note affidavit and indemnity with a copy of such Mortgage
Note);
(ii) a copy of the executed related Co-Lender Agreement; and
(iii) a copy of the executed related Outside Servicing Agreement;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or by a Custodian on its behalf, such term
shall not be deemed to include such documents required to be included therein
unless they are actually so received, and with respect to any receipt or
certification by the Trustee or a Custodian on its behalf for documents
described in clauses (a)(vii) through (a)(xx) of this definition, shall be
deemed to include such documents only to the extent the Trustee or a Custodian
on its behalf has actual knowledge of their existence.
"Mortgage Loan" shall mean any Trust Mortgage Loan or Non-Trust
Mortgage Loan. As used herein, the term "Mortgage Loan" includes the related
Mortgage Note, Mortgage and other security documents contained in the related
Mortgage File or otherwise held on behalf of the Trust and/or any affected
Non-Trust Mortgage Loan Noteholder(s), as applicable, including, in the case of
an Outside Serviced Loan Combination, any such documents held by or on behalf of
a related Non-Trust Mortgage Loan Noteholder.
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"Mortgage Loan Origination Documents" shall mean, with respect to any
Serviced Trust Mortgage Loan, any of the following documents (other than any
document that constitutes part of the Mortgage File for such Serviced Trust
Mortgage Loan), if applicable with respect to such Serviced Trust Mortgage Loan:
copies of any final appraisal, final survey, final engineering report, final
environmental report, opinion letters of counsel to the related mortgagor
delivered in connection with the closing of such Serviced Trust Mortgage Loan,
escrow agreements, organizational documentation for the related mortgagor,
organizational documentation for any related guarantor or indemnitor (if the
related guarantor or indemnitor is an entity), insurance certificates, leases
for tenants representing 25% or more of the annual income with respect to the
related Mortgaged Property, final seismic report and property management
agreements, but, in each case, only if the subject document (a) was in fact
obtained in connection with the origination of such Serviced Trust Mortgage
Loan, (b) relates to the administration or servicing of such Serviced Trust
Mortgage Loan, (c) is reasonably necessary for the ongoing administration and/or
servicing of such Serviced Trust Mortgage Loan by the Master Servicer or Special
Servicer in connection with its duties under this Agreement, and (d) is in the
possession or under the control of the Depositor (if such Serviced Trust
Mortgage Loan is a Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller
(if such Serviced Trust Mortgage Loan is a UBS Trust Mortgage Loan), as
applicable; provided that neither the Depositor nor the UBS Mortgage Loan Seller
shall be required to deliver any draft documents, privileged or other
communications or correspondence, credit underwriting or due diligence analyses
or information, credit committee briefs or memoranda or other internal approval
documents or data or internal worksheets, memoranda, communications or
evaluations.
"Mortgage Loan Purchase Agreements" shall mean the LBHI/Depositor
Mortgage Loan Purchase Agreement , the LUBS/Depositor Mortgage Loan Purchase
Agreement or the UBS/Depositor Mortgage Loan Purchase Agreement, as applicable.
"Mortgage Loan Seller" shall mean a Xxxxxx Mortgage Loan Seller or the
UBS Mortgage Loan Seller, as applicable.
"Mortgage Note" shall mean the original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan, together with any rider,
addendum or amendment thereto, or any renewal, substitution or replacement of
such note.
"Mortgage Pool" shall mean all of the Trust Mortgage Loans and any REO
Trust Mortgage Loans, collectively.
"Mortgage Pool Data Update Report" shall mean, with respect to any
Distribution Date, a report (which may be included as part of the Distribution
Date Statement), prepared by the Trustee, containing information regarding the
Trust Mortgage Loans as of the end of the related Collection Period, which
report shall contain substantially the categories of information regarding the
Trust Mortgage Loans set forth on Annexes A-1 through A-6 to the Prospectus
Supplement (calculated, where applicable, on the basis of the most recent
relevant information provided by the Mortgagors to the Master Servicer or the
Special Servicer, as the case may be, and by the Master Servicer or the Special
Servicer, as the case may be, to the Trustee), and which information shall be
presented in tabular format substantially similar to the format utilized on such
annexes and shall also include a loan-by-loan listing (in descending balance
order) showing loan number, property type, location, unpaid principal balance,
Mortgage Rate, paid-through date, maturity date, gross interest portion of the
Monthly Payment, principal portion of the Monthly Payment, and any Prepayment
Consideration received.
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"Mortgage Rate" shall mean, with respect to each Mortgage Loan (and
any successor REO Mortgage Loan with respect thereto), the related annualized
rate at which interest is scheduled (in the absence of a default) to accrue on
such Mortgage Loan from time to time in accordance with the related Mortgage
Note and applicable law, as such rate may be modified in accordance with Section
3.20 (or, in the case of a Mortgage Loan that is part of an Outside Serviced
Loan Combination, by the applicable Outside Servicer in accordance with the
related Outside Servicing Agreement) or in connection with a bankruptcy,
insolvency or similar proceeding involving the related Mortgagor. In the case of
any ARD Mortgage Loan, the related Mortgage Rate shall increase in accordance
with the related Mortgage Note if the particular loan is not paid in full by its
Anticipated Repayment Date.
"Mortgaged Property" shall mean the real property subject to the lien
of a Mortgage.
"Mortgagor" shall mean, individually and collectively, as the context
may require, (i) the primary obligor or obligors under a Mortgage Note,
including any Person that has acquired the related Mortgaged Property and
assumed the obligations of the original obligor under the Mortgage Note, and
(ii) the owner of the related Mortgaged Property, if such owner has executed the
related Mortgage with respect to the subject Mortgage Loan in addition to a
guaranty of the obligations of the named obligor on the related Mortgage Note,
and such guaranty is secured by such Mortgage; provided that the foregoing
definition of "Mortgagor" shall not include any guarantors except to the extent
described in clause (ii) above.
"Net Aggregate Prepayment Interest Shortfall" shall mean, with respect
to any Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred with respect to the Mortgage Pool in
connection with Principal Prepayments and/or, insofar as they result from the
application of Insurance Proceeds and/or Condemnation Proceeds, other early
recoveries of principal Received by the Trust on the Trust Mortgage Loans
(including Specially Serviced Trust Mortgage Loans) during the related
Collection Period, exceeds (b) the aggregate amount deposited by the Master
Servicer in the Collection Account for such Distribution Date pursuant to
Section 3.19(a) in connection with such Prepayment Interest Shortfalls.
"Net Default Charges" shall have, with respect to any Trust Mortgage
Loan or REO Trust Mortgage Loan, the meaning assigned thereto in Section
3.26(a).
"Net Investment Earnings" shall mean, with respect to any Investment
Account for any related Investment Period, the amount, if any, by which the
aggregate of all interest and other income realized during such Investment
Period on funds held in such Investment Account (exclusive, in the case of a
Servicing Account, a Reserve Account or the Defeasance Deposit Account, of any
portion of such interest or other income payable to a Mortgagor in accordance
with the related loan documents and applicable law), exceeds the aggregate of
all losses, if any, incurred during such Investment Period in connection with
the investment of such funds in accordance with Section 3.06 (exclusive, in the
case of a Servicing Account, a Reserve Account or the Defeasance Deposit
Account, of any portion of such losses that were incurred in connection with
investments made for the benefit of a Mortgagor).
"Net Investment Loss" shall mean, with respect to any Investment
Account for any related Investment Period, the amount by which the aggregate of
all losses, if any, incurred during such Investment Period in connection with
the investment of funds held in such Investment Account in accordance with
Section 3.06 (exclusive, in the case of a Servicing Account, a Reserve Account
or the Defeasance Deposit Account, of any portion of such losses that were
incurred in connection with
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investments made for the benefit of a Mortgagor), exceeds the aggregate of all
interest and other income realized during such Investment Period on such funds
(exclusive, in the case of a Servicing Account, a Reserve Account or the
Defeasance Deposit Account, of any portion of such interest or other income
payable to a Mortgagor in accordance with the related loan documents and
applicable law).
"Net Liquidation Proceeds" shall mean the excess, if any, of all
Liquidation Proceeds received with respect to any Specially Serviced Mortgage
Loan or Administered REO Property, over the amount of all Liquidation Expenses
incurred with respect thereto.
"Net Prepayment Consideration" shall mean the Prepayment Consideration
Received by the Trust (or, if applicable, on behalf of a Serviced Non-Trust
Mortgage Loan Noteholder) with respect to any Mortgage Loan or REO Mortgage
Loan, net of any Workout Fee or Liquidation Fee payable in connection with the
receipt thereof.
"New Lease" shall mean any lease of an Administered REO Property
entered into at the direction of the Special Servicer, including any lease
renewed, modified or extended on behalf of the Trustee and, in the case of a
Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan
Noteholder(s).
"Nonrecoverable Advance" shall mean any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance" shall mean:
(1) any P&I Advance previously made or proposed to be made in respect
of any Trust Mortgage Loan or REO Trust Mortgage Loan by the
Master Servicer, the Trustee or the Fiscal Agent, which P&I
Advance such party has determined in its reasonable, good faith
judgment, will not be ultimately recoverable from late payments,
Insurance Proceeds, Condemnation Proceeds or Liquidation
Proceeds, or any other recovery on or in respect of such Trust
Mortgage Loan or REO Trust Mortgage Loan, as the case may be; and
(2) any P&I Advance previously made or proposed to be made in respect
of any Specially Serviced Trust Mortgage Loan or any REO Trust
Mortgage Loan that the Special Servicer has determined, in
accordance with the Servicing Standard, will not be ultimately
recoverable from late payments, Insurance Proceeds, Condemnation
Proceeds or Liquidation Proceeds, or any other recovery on or in
respect of such Specially Serviced Trust Mortgage Loan or REO
Trust Mortgage Loan, as the case may be.
"Nonrecoverable Servicing Advance" shall mean:
(1) any Servicing Advance previously made or proposed to be made in
respect of any Serviced Mortgage Loan or Administered REO
Property by the Master Servicer, the Special Servicer, the
Trustee or the Fiscal Agent, which Servicing Advance such party
has determined, in its reasonable, good faith judgment, will not
be ultimately recoverable from late payments, Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds, or any other
recovery on or in respect of such
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Mortgage Loan (or, if such Mortgage Loan is part of a Serviced
Loan Combination, on or in respect of such Loan Combination) or
such Administered REO Property, as the case may be; and
(2) any Servicing Advance previously made or proposed to be made in
respect of any Specially Serviced Mortgage Loan or Administered
REO Property by the Master Servicer, the Special Servicer, the
Trustee or the Fiscal Agent, that the Special Servicer has
determined, in accordance with the Servicing Standard, will not
be ultimately recoverable from late payments, Insurance Proceeds,
Condemnation Proceeds or Liquidation Proceeds, or any other
recovery on or in respect of such Specially Serviced Mortgage
Loan (or, if such Mortgage Loan is part of a Serviced Loan
Combination, on or in respect of such Loan Combination) or such
Administered REO Property, as the case may be.
"Non-Registered Certificate" shall mean any Certificate that has not
been the subject of registration under the Securities Act. As of the Closing
Date, the Class X-CL, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class P, Class Q, Class S, Class T, Class R-I, Class R-II and Class
R-III Certificates, the Class R-LR Certificates (if issued in accordance with
Section 2.06) and the Class V Certificates (if issued in accordance with Section
2.05) are Non-Registered Certificates.
"Non-Trust Mortgage Loan" shall mean any mortgage loan that is part of
a Loan Combination but is not included in the Trust Fund. The Non-Trust Mortgage
Loans consist of the 000 Xxxx Xxxxxx Non-Trust Mortgage Loans, the Courtyard by
Marriott Non-Trust Mortgage Loans, the 1345 Avenue of the Americas Non-Trust
Mortgage Loans, the Park Avenue Plaza Non-Trust Mortgage Loans, the 000 Xxxx
Xxxxxxx Note B Non-Trust Mortgage Loan and the other Serviced Note B Non-Trust
Mortgage Loans.
"Non-Trust Mortgage Loan Noteholder" shall mean the holder of the
Mortgage Note for a Non-Trust Mortgage Loan.
"Non-Trust Mortgage Loan Securities" shall mean any securities
evidencing an interest in, or secured by, a Non-Trust Mortgage Loan or any
successor REO Mortgage Loan with respect thereto.
"Non-Trust Mortgage Loan Securitization Agreement" shall mean any
agreement governing the securitization of a Non-Trust Mortgage Loan or any
successor REO Mortgage Loan with respect thereto.
"Non-Trust Mortgage Loan Securitization Trust" shall mean any
commercial mortgage securitization trust that is similar to the Trust and holds
a Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect
thereto.
"Non-United States Securities Person" shall mean a Person that is not
a United States Securities Person.
"Non-United States Tax Person" shall mean a Person that is not a
United States Tax Person.
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"Offering Memorandum" shall mean the Offering Memorandum dated August
15, 2005, relating to the Class X-CL, Class G, Class H, Class J, Class K, Class
L, Class M, Class N, Class P, Class Q, Class S and Class T Certificates.
"Officer's Certificate" shall mean a certificate signed by a Servicing
Officer of the Master Servicer or the Special Servicer, as the case may be, or
by a Responsible Officer of the Trustee or the Fiscal Agent, as the case may be,
and shall mean with respect to any other Person, a certificate signed by any of
the Chairman of the Board, the Vice Chairman of the Board, the President, any
Vice President or Managing Director, an Assistant Vice President or any other
authorized officer (however denominated) or another officer customarily
performing functions similar to those performed by any of the above designated
officers or, with respect to a particular matter, any other officer to whom such
matter is referred because of such officer's knowledge of and familiarity with
the particular subject.
"Opinion of Counsel" shall mean a written opinion of counsel, who may,
without limitation, be salaried counsel for the Depositor, the Master Servicer
or the Special Servicer, acceptable in form and delivered to the Trustee or any
other specified Person, as the case may be, except that any opinion of counsel
relating to (a) the qualification of any REMIC Pool as a REMIC, (b) compliance
with the REMIC Provisions, (c) qualification of the Grantor Trust (if created
hereunder taking into account Section 2.05(b)) as a grantor trust, (d) whether
any act or event would cause an Adverse REMIC Event or Adverse Grantor Trust
Event, as may be applicable, or (e) the resignation of the Master Servicer or
the Special Servicer pursuant to this Agreement, must be a written opinion of
Independent counsel acceptable to and delivered to the Trustee or any other
specified Person, as the case may be.
"Original Class Notional Amount" shall mean, with respect to either
Class of Interest-Only Certificates, the initial Class Notional Amount thereof
as of the Closing Date, which shall equal $2,344,068,538, in the case of the
Class X-CL Certificates, and $2,206,083,000, in the case of the Class X-CP
Certificates.
"Original Class Principal Balance" shall mean, with respect to any
Class of Principal Balance Certificates, the initial Class Principal Balance
thereof as of the Closing Date, in each case as specified in the Preliminary
Statement.
"OTS" shall mean the Office of Thrift Supervision or any successor
thereto.
"Outside Administered REO Property" shall mean any REO Property
relating to an Outside Serviced Loan Combination.
"Outside Master Servicer" shall mean: (i) in the case of the 000 Xxxx
Xxxxxx Trust Mortgage Loan (or any successor REO Trust Mortgage Loan with
respect thereto), the 000 Xxxx Xxxxxx Master Servicer; (ii) in the case of the
Courtyard by Marriott Trust Mortgage Loan (or any successor REO Trust Mortgage
Loan with respect thereto), the Courtyard by Marriott Master Servicer; (iii) in
the case of the 1345 Avenue of the Americas Trust Mortgage Loan (or any
successor REO Trust Mortgage Loan with respect thereto), the 1345 Avenue of the
Americas Master Servicer; and (iv) in the case of the Park Avenue Plaza Trust
Mortgage Loan (or any successor REO Trust Mortgage Loan with respect thereto),
the Park Avenue Plaza Master Servicer.
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"Outside Serviced Loan Combination" shall mean the 000 Xxxx Xxxxxx
Loan Combination, the Courtyard by Marriott Loan Combination, the 1345 Avenue of
the Americas Loan Combination or the Park Avenue Plaza Loan Combination, as
applicable.
"Outside Serviced Mortgage Loan" shall mean any Mortgage Loan that is
part of an Outside Serviced Loan Combination.
"Outside Serviced Trust Mortgage Loan" shall mean the 000 Xxxx Xxxxxx
Trust Mortgage Loan, the Courtyard by Marriott Trust Mortgage Loan, the 1345
Avenue of the Americas Trust Mortgage Loan or the Park Avenue Plaza Trust
Mortgage Loan, as applicable.
"Outside Servicer" shall mean, in the case of each Outside Serviced
Loan Combination, the related Outside Master Servicer or Outside Special
Servicer, as applicable.
"Outside Servicer Default" shall mean an "Event of Default" on the
part of an Outside Servicer under an Outside Servicing Agreement.
"Outside Servicing Agreement" shall mean: (i) in the case of the 000
Xxxx Xxxxxx Trust Mortgage Loan (or any successor REO Trust Mortgage Loan with
respect thereto), the 000 Xxxx Xxxxxx Servicing Agreement; (ii) in the case of
the Courtyard by Marriott Trust Mortgage Loan (or any successor REO Trust
Mortgage Loan with respect thereto), the Courtyard by Marriott Servicing
Agreement; (iii) in the case of the 1345 Avenue of the Americas Trust Mortgage
Loan (or any successor REO Trust Mortgage Loan with respect thereto), the 1345
Avenue of the Americas Servicing Agreement; and (iv) in the case of the Park
Avenue Plaza Trust Mortgage Loan (or any successor REO Trust Mortgage Loan with
respect thereto), the Park Avenue Plaza Servicing Agreement
"Outside Servicing Fee" shall mean, with respect to any Outside
Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with
respect thereto, the monthly fee, comparable to the Master Servicing Fee
hereunder and calculated at the related Outside Servicing Fee Rate, that is
payable to the related Outside Master Servicer (or, if applicable, to the
related Outside Master Servicer and a primary servicer in the aggregate).
"Outside Servicing Fee Rate" shall mean: (i) 0.01% per annum, in the
case of the 000 Xxxx Xxxxxx Trust Mortgage Loan or any successor REO Trust
Mortgage Loan with respect thereto; (ii) 0.01% per annum, in the case of the
Courtyard by Marriott Trust Mortgage Loan or any successor REO Trust Mortgage
Loan with respect thereto, (iii) 0.0025% per annum, in the case of the 1345
Avenue of the Americas Trust Mortgage Loan or any successor REO Trust Mortgage
Loan with respect thereto; and (iv) 0.0025% per annum, in the case of the Park
Avenue Plaza Trust Mortgage Loan or any successor REO Trust Mortgage Loan with
respect thereto.
"Outside Special Servicer" shall mean: (i) in the case of the 000 Xxxx
Xxxxxx Trust Mortgage Loan (or any successor REO Trust Mortgage Loan with
respect thereto), the 000 Xxxx Xxxxxx Special Servicer; (ii) in the case of the
Courtyard by Marriott Trust Mortgage Loan (or any successor REO Trust Mortgage
Loan with respect thereto), the Courtyard by Marriott Special Servicer; (iii) in
the case of the 1345 Avenue of the Americas Trust Mortgage Loan (or any
successor REO Trust Mortgage Loan with respect thereto), the 1345 Avenue of the
Americas Special Servicer; and (iv) in the case of the Park Avenue Plaza Trust
Mortgage Loan (or any successor REO Trust Mortgage Loan with respect thereto),
the Park Avenue Plaza Special Servicer.
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"OTS" shall mean the Office of Thrift Supervision or any successor
thereto.
"Outside Trustee" shall mean: (i) in the case of the 000 Xxxx Xxxxxx
Trust Mortgage Loan (or any successor REO Trust Mortgage Loan with respect
thereto), the 000 Xxxx Xxxxxx Xxxxxxx; (ii) in the case of the Courtyard by
Marriott Trust Mortgage Loan (or any successor REO Trust Mortgage Loan with
respect thereto), the Courtyard by Marriott Trustee; (iii) in the case of the
1345 Avenue of the Americas Trust Mortgage Loan (or any successor REO Trust
Mortgage Loan with respect thereto), the 1345 Avenue of the Americas Trustee;
and (iv) in the case of the Park Avenue Plaza Trust Mortgage Loan (or any
successor REO Trust Mortgage Loan with respect thereto), the Park Avenue Plaza
Trustee.
"Ownership Interest" shall mean, 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, as to any Trust Mortgage Loan or REO Trust
Mortgage Loan, any advance made by the Master Servicer, the Trustee or the
Fiscal Agent pursuant to Section 4.03.
"Pari Passu Mortgage Loan" shall mean any Mortgage Loan (or portion
thereof) that (a) is part of an Outside Serviced Loan Combination and (b) is not
a Subordinate Non-Trust Mortgage Loan.
"Pari Passu Non-Trust Mortgage Loan" shall mean any Non-Trust Mortgage
Loan (or portion thereof) that is a Pari Passu Mortgage Loan.
"Park Avenue Plaza Co-Lender Agreement" shall have the meaning
assigned thereto in the Preliminary Statement.
"Park Avenue Plaza Collection Period" shall mean, with respect to any
Trust Master Servicer Remittance Date or any Distribution Date, the period
commencing on the day immediately following the Park Avenue Plaza Determination
Date in the calendar month preceding the calendar month in which such Trust
Master Servicer Remittance Date or such Distribution Date, as the case may be,
occurs (or, in the case of each of the initial Trust Master Servicer Remittance
Date and the initial Distribution Date, commencing immediately following the
Cut-off Date) and ending on and including the Park Avenue Plaza Determination
Date in the calendar month in which such Trust Master Servicer Remittance Date
or such Distribution Date, as the case may be, occurs.
"Park Avenue Plaza Determination Date" shall mean the "Business Day"
(within the meaning of the initial Park Avenue Plaza Servicing Agreement)
following the eighth calendar day of each month, commencing in September 2005.
"Park Avenue Plaza Loan Combination" shall have the meaning assigned
thereto in the Preliminary Statement.
"Park Avenue Plaza Master Servicer" shall have the meaning assigned
thereto in the Preliminary Statement.
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"Xxxx Xxxxxx Xxxxx Xxxxxxxx Loan" shall mean the Park Avenue Plaza
Trust Mortgage Loan or any Park Avenue Plaza Non-Trust Mortgage Loan, as
applicable.
"Park Avenue Plaza Mortgaged Property" shall have the meaning assigned
thereto in the Preliminary Statement.
"Park Avenue Plaza Non-Trust Mortgage Loan Noteholder" shall mean the
holder (or, if applicable, the collective holders) of the Mortgage Note for the
Park Avenue Plaza Non-Trust Mortgage Loan.
"Park Avenue Plaza Non-Trust Mortgage Loans" shall have the meaning
assigned thereto in the Preliminary Statement.
"Park Avenue Plaza Note 1-A1 Non-Trust Mortgage Loan" shall have the
meaning assigned thereto in the Preliminary Statement.
"Park Avenue Plaza Note 1-A1 Non-Trust Mortgage Loan Noteholder" shall
mean the holder (or, if applicable, the collective holders) of the Mortgage Note
for the Park Avenue Plaza Note 1-A1 Non-Trust Mortgage Loan.
"Park Avenue Plaza Note 1-A3 Non-Trust Mortgage Loan" shall have the
meaning assigned thereto in the Preliminary Statement.
"Park Avenue Plaza Note 1-A3 Non-Trust Mortgage Loan Noteholder" shall
mean the holder (or, if applicable, the collective holders) of the Mortgage Note
for the Park Avenue Plaza Note 1-A3 Non-Trust Mortgage Loan.
"Park Avenue Plaza Note 1-A4 Non-Trust Mortgage Loan" shall have the
meaning assigned thereto in the Preliminary Statement.
"Park Avenue Plaza Note 1-A4 Non-Trust Mortgage Loan Noteholder" shall
mean the holder (or, if applicable, the collective holders) of the Mortgage Note
for the Park Avenue Plaza Note 1-A4 Non-Trust Mortgage Loan.
"Park Avenue Plaza Note 1-B Non-Trust Mortgage Loan Noteholder" shall
mean the holder (or, if applicable, the collective holders) of the Mortgage Note
for a Park Avenue Plaza Note 1-B Non-Trust Mortgage Loan.
"Park Avenue Plaza Note 1-B Non-Trust Mortgage Loans" shall have the
meaning assigned thereto in the Preliminary Statement.
"Park Avenue Plaza Note 2 Non-Trust Mortgage Loan" shall have the
meaning assigned thereto in the Preliminary Statement.
"Park Avenue Plaza Note 2 Non-Trust Mortgage Loan Noteholder" shall
mean the holder (or, if applicable, the collective holders) of the Mortgage Note
for the Park Avenue Plaza Note 2 Non-Trust Mortgage Loan.
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"Xxxx Xxxxxx Xxxxx Noteholders" shall mean, collectively, the holder
of the Mortgage Note for the Park Avenue Plaza Trust Mortgage Loan, together
with the Park Avenue Plaza Non-Trust Mortgage Loan Noteholders.
"Park Avenue Plaza Servicer" shall mean the Park Avenue Plaza Master
Servicer or the Park Avenue Plaza Special Servicer.
"Park Avenue Plaza Servicing Agreement" shall have the meaning
assigned thereto in the Preliminary Statement.
"Park Avenue Plaza Special Servicer" shall have the meaning assigned
thereto in the Preliminary Statement.
"Park Avenue Plaza Trust Mortgage Loan" shall have the meaning
assigned thereto in the Preliminary Statement, which Trust Mortgage Loan is
identified on the Trust Mortgage Loan Schedule by loan number 25 and is,
together with the Park Avenue Plaza Non-Trust Mortgage Loans, secured by the
same Mortgage on the Park Avenue Plaza Mortgaged Property.
"Park Avenue Plaza Trustee" shall have the meaning assigned thereto in
the Preliminary Statement.
"Park Avenue Plaza Underlying Collection Period" shall mean, with
respect to any Distribution Date or Trust Master Servicer Remittance Date, the
"Due Period" (within the meaning of the initial Park Avenue Plaza Servicing
Agreement) with respect to the Park Avenue Plaza Loan Combination that ends in
the calendar month in which such Distribution Date or Trust Master Servicer
Remittance Date, as the case may be, occurs.
"Pass-Through Rate" shall mean:
(a) with respect to the Class A-1 Certificates, for any Interest
Accrual Period, 4.741% per annum;
(b) with respect to the Class A-2 Certificates, for any Interest
Accrual Period, 4.885% per annum;
(c) with respect to the Class A-3 Certificates, for any Interest
Accrual Period, 4.964% per annum;
(d) with respect to the Class A-AB Certificates, for any Interest
Accrual Period, 4.930% per annum;
(e) with respect to the Class A-4 Certificates, for any Interest
Accrual Period, 4.954% per annum;
(f) with respect to the Class A-1A Certificates, for any Interest
Accrual Period, 4.946% per annum;
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(g) with respect to the Class A-M Certificates, for any Interest
Accrual Period, an annual rate equal to the lesser of (i) the Weighted
Average REMIC I Remittance Rate for such Interest Accrual Period and (ii)
5.017% per annum;
(h) with respect to the Class A-J Certificates, for any Interest
Accrual Period, an annual rate equal to the lesser of (i) the Weighted
Average REMIC I Remittance Rate for such Interest Accrual Period and (ii)
5.057% per annum;
(i) with respect to the Class B Certificates, for any Interest Accrual
Period, an annual rate equal to the lesser of (i) the Weighted Average
REMIC I Remittance Rate for such Interest Accrual Period and (ii) 5.127%
per annum;
(j) with respect to the Class C Certificates, for any Interest Accrual
Period, an annual rate equal to the lesser of (i) the Weighted Average
REMIC I Remittance Rate for such Interest Accrual Period and (ii) 5.146%
per annum;
(k) with respect to the Class D Certificates, for any Interest Accrual
Period, an annual rate equal to the lesser of (i) the Weighted Average
REMIC I Remittance Rate for such Interest Accrual Period and (ii) 5.195%
per annum;
(l) with respect to the Class E Certificates, for any Interest Accrual
Period, an annual rate equal to the lesser of (i) the Weighted Average
REMIC I Remittance Rate for such Interest Accrual Period and (ii) 5.225%
per annum;
(m) with respect to the Class F Certificates, for any Interest Accrual
Period, an annual rate equal to the lesser of (i) the Weighted Average
REMIC I Remittance Rate for such Interest Accrual Period and (ii) 5.245%
per annum;
(n) with respect to the Class G Certificates, for any Interest Accrual
Period, an annual rate equal to the lesser of (i) the Weighted Average
REMIC I Remittance Rate for such Interest Accrual Period and (ii) 5.350%
per annum;
(o) with respect to the Class H Certificates, for any Interest Accrual
Period, an annual rate equal to the lesser of (i) the Weighted Average
REMIC I Remittance Rate for such Interest Accrual Period and (ii) 5.350%
per annum;
(p) with respect to the Class J Certificates, for any Interest Accrual
Period, an annual rate equal to the lesser of (i) the Weighted Average
REMIC I Remittance Rate for such Interest Accrual Period and (ii) 5.350%
per annum;
(q) with respect to the Class K Certificates, for any Interest Accrual
Period, an annual rate equal to the Weighted Average REMIC I Remittance
Rate for such Interest Accrual Period;
(r) with respect to the Class L, Class M, Class N, Class P, Class Q,
Class S and Class T Certificates, for any Interest Accrual Period, 4.750%
per annum;
(s) with respect to any Class X-XX XXXXX III Component, for any
Interest Accrual Period, an annual rate equal to either: (i) if such Class
X-XX XXXXX III Component has a
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Corresponding Class X-CP REMIC III Component, and if such Interest Accrual
Period relates to, or otherwise ends prior to, the Class X-CP Termination
Date for such Corresponding Class X-CP REMIC III Component, the excess, if
any, of (A) the REMIC II Remittance Rate with respect to such Class X-XX
XXXXX III Component's Corresponding REMIC II Regular Interest for such
Interest Accrual Period, over (B) the greater of (1) the Adjusted REMIC II
Remittance Rate with respect to such Class X-XX XXXXX III Component's
Corresponding REMIC II Regular Interest for such Interest Accrual Period
and (2) the Reference Rate for such Interest Accrual Period; or (ii) in all
other cases, the excess, if any, of (X) the REMIC II Remittance Rate with
respect to such Class X-XX XXXXX III Component's Corresponding REMIC II
Regular Interest for such Interest Accrual Period, over (Y) the Adjusted
REMIC II Remittance Rate with respect to such Class X-XX XXXXX III
Component's Corresponding REMIC II Regular Interest for such Interest
Accrual Period;
(t) with respect to the Class X-CL Certificates, for any Interest
Accrual Period, an annual rate equal to the weighted average (expressed as
a percentage and rounded to six decimal places) of the respective
Pass-Through Rates applicable to the Class X-XX XXXXX III Components for
such Interest Accrual Period, weighted on the basis of the respective
Component Notional Amounts of the Class X-XX XXXXX III Components
outstanding immediately prior to the related Distribution Date;
(u) with respect to any Class X-CP REMIC III Component, for any
Interest Accrual Period, an annual rate equal to either: (i) if such
Interest Accrual Period relates to, or otherwise ends prior to, the Class
X-CP Termination Date for such Class X-CP REMIC III Component, the excess,
if any, of (A) the lesser of (1) the REMIC II Remittance Rate with respect
to such Class X-CP REMIC III Component's Corresponding REMIC II Regular
Interest for such Interest Accrual Period and (2) the Reference Rate for
such Interest Accrual Period, over (B) the Adjusted REMIC II Remittance
Rate with respect to such Class X-CP REMIC III Component's Corresponding
REMIC II Regular Interest for such Interest Accrual Period; or (ii) if such
Interest Accrual Period relates to a Distribution Date subsequent to the
Class X-CP Termination Date for such Class X-CP REMIC III Component, 0% per
annum; and
(v) with respect to the Class X-CP Certificates, for any Interest
Accrual Period, an annual rate equal to the weighted average (expressed as
a percentage and rounded to six decimal places) of the respective
Pass-Through Rates applicable to the Class X-CP REMIC III Components for
such Interest Accrual Period, weighted on the basis of the respective
Component Notional Amounts of the Class X-CP REMIC III Components
outstanding immediately prior to the related Distribution Date; provided
that, for reporting purposes, the Pass-Through Rate of the Class X-CP
Certificates for each Interest Accrual Period shall be calculated in
accordance with the Prospectus Supplement.
The Weighted Average REMIC I Remittance Rate referenced above in this
definition is also the REMIC II Remittance Rate for each REMIC II Regular
Interest.
"Percentage Interest" shall mean: (a) with respect to any Regular
Interest Certificate, the portion of the relevant Class evidenced by such
Certificate, expressed as a percentage, the numerator of which is the
Certificate Principal Balance or Certificate Notional Amount, as the case may
be, of such Certificate as of the Closing Date, as specified on the face
thereof, and the denominator of which is the
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Original Class Principal Balance or Original Class Notional Amount, as the case
may be, of the relevant Class; and (b) with respect to any other Certificate,
the percentage interest in distributions to be made with respect to the relevant
Class, as stated on the face of such Certificate.
"Performing Serviced Mortgage Loan" shall mean any Corrected Mortgage
Loan and any Serviced Mortgage Loan as to which a Servicing Transfer Event has
never occurred.
"Performing Serviced Trust Mortgage Loan" shall mean any Trust
Mortgage Loan that is a Performing Serviced Mortgage Loan.
"Permitted Encumbrances" shall have the meaning assigned thereto in
paragraph (viii) of Schedule II.
"Permitted Investments" shall mean any one or more of the following
obligations or securities (including obligations or securities of the Trustee
(in its individual capacity) if otherwise qualifying hereunder):
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or
any agency or instrumentality thereof (having original maturities
of not more than 365 days), provided that such obligations are
backed by the full faith and credit of the United States. Such
obligations must be limited to those instruments that have a
predetermined fixed dollar amount of principal due at maturity
that cannot vary or change. Interest may either be fixed or
variable. If such interest is variable, interest must be tied to
a single interest rate index plus a single fixed spread (if any),
and move proportionately with that index;
(ii) repurchase obligations with respect to any security described in
clause (i) of this definition (having original maturities of not
more than 365 days), provided that the short-term deposit or debt
obligations of the party agreeing to repurchase such obligations
are rated in the highest rating category of each Rating Agency
(or, in the case of either Rating Agency, such lower rating as
will not result in an Adverse Rating Event with respect to any
Class of Certificates that is rated by such Rating Agency, as
evidenced in writing by such Rating Agency). In addition, any
such item by its terms must have a predetermined fixed dollar
amount of principal due at maturity that cannot vary or change.
Interest may either be fixed or variable. If such interest is
variable, interest must be tied to a single interest rate index
plus a single fixed spread (if any), and move proportionately
with that index;
(iii) certificates of deposit, time deposits, demand deposits and
bankers' acceptances of any bank or trust company organized under
the laws of the United States or any state thereof (having
original maturities of not more than 365 days), the short-term
obligations of which are rated in the highest rating category of
each Rating Agency (or, in the case of either Rating Agency, such
lower rating as will not result in an Adverse Rating Event with
respect to any Class of Certificates that is rated by such Rating
Agency, as evidenced in writing by such Rating Agency). In
addition, any such item by its terms must have a predetermined
fixed dollar
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amount of principal due at maturity that cannot vary or change.
Interest may either be fixed or variable. If such interest is
variable, interest must be tied to a single interest rate index
plus a single fixed spread (if any), and move proportionately
with that index;
(iv) commercial paper (having original maturities of not more than 90
days) of any corporation incorporated under the laws of the
United States or any state thereof (or if not so incorporated,
the commercial paper is United States Dollar denominated and
amounts payable thereunder are not subject to any withholding
imposed by any non-United States jurisdiction) which is rated in
the highest rating category of each Rating Agency (or, in the
case of either Rating Agency, such lower rating as will not
result in an Adverse Rating Event with respect to any Class of
Certificates that is rated by such Rating Agency, as evidenced in
writing by such Rating Agency). In addition, such commercial
paper by its terms must have a predetermined fixed dollar amount
of principal due at maturity that cannot vary or change. Interest
may either be fixed or variable. If such interest is variable,
interest must be tied to a single interest rate index plus a
single fixed spread (if any), and move proportionately with that
index;
(v) units of money market funds rated in the highest applicable
rating category of each Rating Agency (or, in the case of either
Rating Agency, such lower rating as will not result in an Adverse
Rating Event with respect to any Class of Certificates that is
rated by such Rating Agency, as evidenced in writing by such
Rating Agency) and which seeks to maintain a constant net asset
value; and
(vi) any other obligation or security that (A) is acceptable to each
Rating Agency, evidence of which acceptability shall (1) in the
case of any Rating Agency, be evidenced in a writing by such
Rating Agency to the effect that such obligation or security will
not result in an Adverse Rating Event with respect to any Class
of Certificates that is rated by such Rating Agency, or (2)
otherwise be evidenced in a writing by each Rating Agency to the
Master Servicer, the Special Servicer and the Trustee, (B) has a
short-term rating of at least "A-1" or its equivalent from each
Rating Agency and (C) constitutes a "cash flow investment"
(within the meaning of the REMIC Provisions), as evidenced by an
Opinion of Counsel obtained at the expense of the Person that
wishes to include such obligation or security as a Permitted
Investment;
provided that (1) no investment described hereunder shall evidence either the
right to receive (x) only interest with respect to such investment or (y) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations; (2) no investment described hereunder may be purchased
at a price greater than par if such investment may be prepaid or called at a
price less than its purchase price prior to stated maturity; and (3) no
investment described hereunder may have a "r" highlighter or other comparable
qualifier attached to its rating.
"Permitted Purchase" shall mean:
(i) the repurchase of a Xxxxxx Trust Mortgage Loan or any related REO
Property by the Depositor, pursuant to Section 2.03;
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(ii) the repurchase of a UBS Trust Mortgage Loan or any related REO
Property by or on behalf of the UBS Mortgage Loan Seller, pursuant to the
UBS/Depositor Mortgage Loan Purchase Agreement;
(iii) the purchase of a Specially Serviced Trust Mortgage Loan by a
Purchase Option Holder or its assignee, pursuant to Section 3.18;
(iv) the purchase of a Trust Mortgage Loan or REO Property by the
Special Servicer, a Controlling Class Certificateholder, the Master
Servicer, the Depositor or Xxxxxx Brothers, pursuant to Section 9.01;
(v) the purchase of a Mortgage Loan by the holder of a related
mezzanine loan in connection with a default under such Mortgage Loan, as
set forth in the related intercreditor agreement; or
(vi) in the case of a Combination Trust Mortgage Loan, the purchase of
such Mortgage Loan by a related Non-Trust Mortgage Loan Noteholder or its
designee, pursuant to the related Co-Lender Agreement.
"Permitted Transferee" shall mean any Transferee of a Residual
Interest Certificate other than (a) a Disqualified Organization, (b) any Person
as to whom, as determined by the Trustee (based upon an Opinion of Counsel,
obtained at the request of the Trustee at the expense of such Person or the
Person seeking to Transfer a Residual Interest Certificate, supporting such
determination), the Transfer of a Residual Interest Certificate may cause any
REMIC Pool to fail to qualify as a REMIC at any time that any Certificate is
outstanding, (c) a Disqualified Non-United States Tax Person, (d) a Disqualified
Partnership, or (e) a foreign permanent establishment or fixed base (within the
meaning of any applicable income tax treaty between the United States and any
foreign jurisdiction) of a United States Tax Person.
"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan" shall have the meaning assigned thereto in Section 5.02(c).
"Plurality Residual Interest Certificateholder" shall mean, as to any
taxable year of any REMIC Pool, the Holder of Certificates evidencing the
largest Percentage Interest in the related Class of Residual Interest
Certificates.
"Pool Custodial Account" shall mean the segregated account or accounts
created and maintained by the Master Servicer pursuant to Section 3.04(a) on
behalf of the Trustee in trust for the Certificateholders, which shall be
entitled "[NAME OF MASTER SERVICER], as Master Servicer, on behalf of [NAME OF
TRUSTEE], as Trustee, in trust for the registered holders of LB-UBS Commercial
Mortgage Trust 2005-C5, Commercial Mortgage Pass-Through Certificates, Series
2005-C5, Pool Custodial Account".
"Pool REO Account" shall mean the segregated account or accounts
created and maintained by the Special Servicer pursuant to Section 3.16 on
behalf of the Trustee in trust for the
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Certificateholders, which shall be entitled "[NAME OF SPECIAL SERVICER], as
Special Servicer, on behalf of [NAME OF TRUSTEE], as Trustee, in trust for the
registered holders of LB-UBS Commercial Mortgage Trust 2005-C5, Commercial
Mortgage Pass-Through Certificates, Series 2005-C5, Pool REO Account".
"Prepayment Assumption" shall mean, for purposes of determining the
accrual of original issue discount, market discount and premium, if any, on the
Certificates for federal income tax purposes, the assumption that no Mortgage
Loan is prepaid prior to stated maturity, except that it is assumed that each
ARD Mortgage Loan is repaid on its Anticipated Repayment Date.
"Prepayment Consideration" shall mean any Prepayment Premium, Yield
Maintenance Charge and/or Excess Defeasance Deposit Proceeds.
"Prepayment Consideration Entitlement" shall mean:
(i) with respect to (A) any Distribution Date on which any Net
Prepayment Consideration Received by the Trust on any Group 1 Trust
Mortgage Loan (or any successor REO Trust Mortgage Loan with respect
thereto) is distributable and (B) any Class of YM Principal Balance
Certificates that is entitled to distributions of principal with respect to
Loan Group No. 1 on such Distribution Date, for purposes of determining the
portion of such Net Prepayment Consideration distributable with respect to
such Class of YM Principal Balance Certificates, an amount equal to the
product of (x) the amount of such Net Prepayment Consideration, multiplied
by (y) a fraction (not greater than 1.0 or less than 0.0), the numerator of
which is equal to the excess, if any, of the Pass-Through Rate for such
Class of YM Principal Balance Certificates for the related Interest Accrual
Period over the relevant Discount Rate, and the denominator of which is
equal to the excess, if any, of the Mortgage Rate for such Trust Mortgage
Loan (or REO Trust Mortgage Loan) over the relevant Discount Rate, and
further multiplied by (z) a fraction, the numerator of which is equal to
the amount of principal to be distributed on such Class of YM Principal
Balance Certificates on such Distribution Date pursuant to Section 4.01 or
9.01, as applicable, with respect to Loan Group No. 1, and the denominator
of which is equal to the portion, if any, of the Adjusted Principal
Distribution Amount for such Distribution Date that is attributable to Loan
Group No. 1; and
(ii) with respect to (A) any Distribution Date on which any Net
Prepayment Consideration Received by the Trust on any Group 2 Trust
Mortgage Loan (or any successor REO Trust Mortgage Loan with respect
thereto) is distributable and (B) any Class of YM Principal Balance
Certificates that is entitled to distributions of principal with respect to
Loan Group No. 2 on such Distribution Date, for purposes of determining the
portion of such Net Prepayment Consideration distributable with respect to
such Class of YM Principal Balance Certificates, an amount equal to the
product of (x) the amount of such Net Prepayment Consideration, multiplied
by (y) a fraction (not greater than 1.0 or less than 0.0), the numerator of
which is equal to the excess, if any, of the Pass-Through Rate for such
Class of YM Principal Balance Certificates over the relevant Discount Rate,
and the denominator of which is equal to the excess, if any, of the
Mortgage Rate for such Trust Mortgage Loan (or REO Trust Mortgage Loan)
over the relevant Discount Rate, and further multiplied by (z) a fraction,
the numerator of which is equal to the amount of principal to be
distributed on such Class of YM Principal Balance Certificates on such
Distribution Date pursuant to Section 4.01 or 9.01, as applicable,
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with respect to Loan Group No. 2, and the denominator of which is equal to
the portion, if any, of the Adjusted Principal Distribution Amount for such
Distribution Date attributable to Loan Group No. 2.
For purposes of the foregoing, to the extent that distributions of
principal on any Class of Principal Balance Certificates could be made from
principal amounts allocable to either Loan Group, the Trustee shall assume that
those distributions of principal on that Class of Principal Balance Certificates
are made from principal amounts allocable to each Loan Group, on a pro rata
basis in accordance with the respective principal amounts allocable to each Loan
Group that were available for distributions of principal on that Class. In
connection therewith, (i) distributions of principal made with respect to the
Class A-1A Certificates, pursuant to subclause (i) of clause second of Section
4.01(a), on any Distribution Date prior to both the Senior Class A Principal
Distribution Cross-Over Date and the Final Distribution Date, shall be deemed
made solely from principal amounts allocable to Loan Group No. 2, and (ii) all
other distributions of principal made with respect to any Class of Principal
Balance Certificates, pursuant to Section 4.01(a) or 4.01(b), on any
Distribution Date, shall be deemed made from principal amounts allocable to both
Loan Groups (net of any principal amounts allocable to Loan Group No. 2 that may
have been applied on such Distribution Date as contemplated by clause (i) of
this sentence).
"Prepayment Interest Excess" shall mean: (a) with respect to any
Serviced Mortgage Loan that was subject to a Principal Prepayment in full or in
part made (or, if resulting from the application of Insurance Proceeds or
Condemnation Proceeds, any other early recovery of principal received) after its
Due Date in any applicable Collection Period, any payment of interest (net of
related Master Servicing Fees) actually collected from the related Mortgagor or
otherwise and intended to cover interest accrued on such Principal Prepayment
during the period from and after such Due Date (exclusive, however, of any
related Prepayment Consideration that may have been collected and, in the case
of an ARD Mortgage Loan after its Anticipated Repayment Date, further exclusive
of any Additional Interest); and (b) with respect to any Outside Serviced Trust
Mortgage Loan that was subject to a Principal Prepayment in full or in part made
(or, if resulting from the application of Insurance Proceeds or Condemnation
Proceeds, any other early recovery of principal received) after its Due Date in
any applicable Underlying Collection Period, any payment of interest (net of
related Master Servicing Fees and any comparable related servicing fees payable
under the related Outside Servicing Agreement) actually collected from the
related Mortgagor or otherwise and intended to cover interest accrued on such
Principal Prepayment during the period from and after such Due Date (exclusive,
however, of any related Prepayment Consideration that may have been collected).
"Prepayment Interest Shortfall" shall mean: (a) with respect to any
Mortgage Loan that was subject to a Principal Prepayment in full or in part made
(or, if resulting from the application of Insurance Proceeds or Condemnation
Proceeds, any other early recovery of principal received) prior to its Due Date
in any applicable Collection Period, the amount of interest, to the extent not
collected from the related Mortgagor or otherwise (without regard to any
Prepayment Consideration that may have been collected), that would have accrued
at a rate per annum equal to the related Mortgage Rate (reduced, in the case of
an ARD Mortgage Loan after its Anticipated Repayment Date, by the related
Additional Interest Rate) on the amount of such Principal Prepayment during the
period from the date to which interest was paid by the related Mortgagor to, but
not including, such Due Date (exclusive of any related Master Servicing Fees
that would have been payable out of such uncollected interest); and (b) with
respect to any Outside Serviced Trust Mortgage Loan that was subject to a
Principal Prepayment in full
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or in part made (or, if resulting from the application of Insurance Proceeds or
Condemnation Proceeds, any other early recovery of principal received) prior to
its Due Date in any applicable Underlying Collection Period, the amount of
interest, to the extent not collected from the related Mortgagor or otherwise
(without regard to any Prepayment Consideration that may have been collected),
that would have accrued at a rate per annum equal to the related Mortgage Rate
(reduced by the related Outside Servicing Fee Rate) on the amount of such
Principal Prepayment during the period from the date to which interest was paid
by the related Mortgagor to, but not including, such Due Date (exclusive of any
related Master Servicing Fees that would have been payable out of such
uncollected interest).
"Prepayment Premium" shall mean any premium, penalty or fee (other
than a Yield Maintenance Charge or any Excess Defeasance Deposit Proceeds) paid
or payable, as the context requires, as a result of a Principal Prepayment on,
or other early collection of principal of, a Mortgage Loan.
"Primary Servicing Office" shall mean the offices of the Master
Servicer or the Special Servicer, as the context may require, that are primarily
responsible for such party's servicing obligations hereunder. As of the Closing
Date, the Primary Servicing Office of the Master Servicer is located at 0000
Xxxxxxxx Xxxxx, XXX0, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000 and the Primary
Servicing Office of the Special Servicer is located at 0000 Xxxxxxxxxx Xxxxxx,
Xxxxx 000, Xxxxx Xxxxx, Xxxxxxx 00000.
"Prime Rate" shall mean the "prime rate" published in the "Money
Rates" section of The Wall Street Journal, as such "prime rate" may change from
time to time. If The Wall Street Journal ceases to publish the "prime rate",
then the Trustee shall select an equivalent publication that publishes such
"prime rate"; and if such "prime rate" is no longer generally published or is
limited, regulated or administered by a governmental or quasi-governmental body,
then the Trustee shall select a comparable interest rate index. In either case,
such selection shall be made by the Trustee in its sole discretion and the
Trustee shall notify the Fiscal Agent, the Master Servicer, the Special Servicer
and each Serviced Non-Trust Mortgage Loan Noteholder in writing of its
selection.
"Principal Balance Certificate" shall mean any Regular Interest
Certificate (other than an Interest-Only Certificate).
"Principal Distribution Amount" shall mean, with respect to any
Distribution Date, an amount equal to the aggregate (without duplication) of the
following:
(a) the aggregate of all payments of principal (other than Principal
Prepayments) Received by the Trust with respect to the Trust Mortgage Loans
during the related Collection Period, in each case exclusive of any portion
of the particular payment that represents a Late Collection of principal
for which a P&I Advance was previously made under this Agreement for a
prior Distribution Date or that represents the principal portion of a
Monthly Payment due on or before the Cut-off Date or on a Due Date
subsequent to the related Collection Period;
(b) the aggregate of the principal portions of all Monthly Payments
due in respect of the Trust Mortgage Loans for their respective Due Dates
occurring during the related Collection Period, that were Received by the
Trust prior to the related Collection Period;
(c) the aggregate of all Principal Prepayments Received by the Trust
on the Trust Mortgage Loans during the related Collection Period;
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(d) the aggregate of all Liquidation Proceeds, Condemnation Proceeds
and Insurance Proceeds Received by the Trust with respect to any Trust
Mortgage Loans during the related Collection Period that were identified
and applied by the Master Servicer as recoveries of principal of such Trust
Mortgage Loans, in each case exclusive of any portion of such proceeds that
represents a Late Collection of principal due on or before the Cut-off Date
or for which a P&I Advance was previously made under this Agreement for a
prior Distribution Date;
(e) the aggregate of all Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds and REO Revenues Received by the Trust with respect to
any REO Properties during the related Collection Period that were
identified and applied by the Master Servicer as recoveries of principal of
the related REO Trust Mortgage Loans, in each case exclusive of any portion
of such proceeds and/or revenues that represents a Late Collection of
principal due on or before the Cut-off Date or for which a P&I Advance was
previously made under this Agreement for a prior Distribution Date; and
(f) the aggregate of the principal portions of all P&I Advances made
under this Agreement with respect to the Trust Mortgage Loans and any REO
Trust Mortgage Loans for such Distribution Date;
provided that none of the amounts set forth in clauses (a) through (f) of this
definition shall represent amounts received, due or advanced on or in respect of
any Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect
thereto.
"Principal Prepayment" shall mean any voluntary payment of principal
made by or on behalf of the Mortgagor on a Mortgage Loan that is received in
advance of its scheduled Due Date, that is Received by the Trust and that is not
accompanied by an amount of interest (without regard to any Prepayment
Consideration that may have been collected) representing scheduled interest due
on any date or dates in any month or months subsequent to the month of
prepayment.
"Prohibited Transaction Exemption" shall mean Prohibited Transaction
Exemption 91-14 granted to a predecessor of Xxxxxx Brothers by the United States
Department of Labor, as such Prohibited Transaction Exemption may be amended
from time to time.
"Proposed Plan" shall have the meaning assigned thereto in Section
3.17(a)(iii).
"Prospectus" shall mean the prospectus dated August 15, 2005, as
supplemented by the Prospectus Supplement, relating to the Registered
Certificates.
"Prospectus Supplement" shall mean the prospectus supplement dated
August 15, 2005, relating to the Registered Certificates.
"PTCE" shall mean prohibited transaction class exemption.
"PTE" shall mean prohibited transaction exemption.
"Purchase Option Holders" shall have the meaning assigned thereto in
Section 3.18(b).
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"Purchase Price" shall mean, with respect to any Trust Mortgage Loan
(or REO Property or, in the case of any REO Property that relates to a Loan
Combination, the Trust's interest therein), a cash price equal to the aggregate
of: (a) the outstanding principal balance of such Trust Mortgage Loan (or, in
the case of an REO Property, the related REO Trust Mortgage Loan) as of the date
of purchase, (b) all accrued and unpaid interest on such Trust Mortgage Loan
(or, in the case of an REO Property, the related REO Trust Mortgage Loan) to,
but not including, the Due Date in the applicable Collection Period of purchase
(exclusive, however, of any portion of such accrued but unpaid interest that
represents Default Interest or, in the case of an ARD Trust Mortgage Loan (or,
in the case of an REO Property, any successor REO Trust Mortgage Loan with
respect thereto) after its Anticipated Repayment Date, Additional Interest), (c)
all related unreimbursed Servicing Advances with respect to such Trust Mortgage
Loan (or REO Property), if any, together with the amount of any Servicing
Advance (and accrued interest thereon in accordance with Section 3.11(g)) with
respect to such Trust Mortgage Loan (or REO Property) that has been previously
reimbursed as a Nonrecoverable Advance out of general collections of principal
on the Mortgage Pool (but only to the extent such amounts have not been
reimbursed to the Trust), (d) all accrued and unpaid interest, if any, in
respect of related Advances in accordance with, as applicable, Section 3.11(g)
and/or Section 4.03(d), and (e) in the case of a repurchase by the Depositor
pursuant to Section 2.03 or by the UBS Mortgage Loan Seller pursuant to the
UBS/Depositor Mortgage Loan Purchase Agreement, (i) to the extent not otherwise
included in the amount described in clause (d) of this definition, any unpaid
Special Servicing Fees and other Additional Trust Fund Expenses with respect to
such Trust Mortgage Loan (or REO Property), including any Liquidation Fee that
may be payable because the subject repurchase occurred subsequent to the
expiration of the Seller/Depositor Resolution Period for the Material Document
Defect or Material Breach, as applicable, that gave rise to the repurchase, and
(ii) to the extent not otherwise included in the amount described in clause (c)
of this definition, any costs and expenses incurred by the Master Servicer, the
Special Servicer or the Trustee (on behalf of the Trust) in enforcing the
obligation of such Person to purchase such Trust Mortgage Loan (or such REO
Property or an interest therein); provided that, in the case of a Trust Mortgage
Loan that is part of a Loan Combination, the Purchase Price calculated above may
be reduced (subject to the provisions of the related Co-Lender Agreement) by any
related unpaid Master Servicing Fees, unreimbursed Advances and/or, to the
extent included therein pursuant to clause (d) above, unpaid interest on
Advances which, following the subject purchase, will continue to be payable or
reimbursable under the related Co-Lender Agreement and/or any successor
servicing agreement to the Master Servicer and/or the Special Servicer in
respect of such Trust Mortgage Loan (which amounts shall no longer be payable
hereunder); and provided, further, that, in the case of an REO Property that
relates to a Serviced Loan Combination, for purposes of Section 3.18, Section
6.11 and Section 6.12, the Purchase Price for such REO Property shall instead
equal the aggregate of the amounts described in clauses (a), (b), (c) and (d)
above with respect to all of the REO Mortgage Loans comprising such Loan
Combination.
"Qualified Bidder" shall have the meaning assigned thereto in Section
7.01(c).
"Qualified Institutional Buyer" or "QIB" shall mean a "qualified
institutional buyer" as defined in Rule 144A under the Securities Act.
"Qualified Insurer" shall mean an insurance company or security or
bonding company qualified to write the related Insurance Policy in the relevant
jurisdiction.
"Qualified Mortgage" shall have the meaning assigned thereto in
Section 2.03(a).
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"Rated Final Distribution Date" shall mean: (a) with respect to the
Senior Class A Certificates, the Distribution Date in September 2030; and (b)
with respect to the other Classes of Principal Balance Certificates (exclusive
of the Class T Certificates), the Distribution Date in September 2040.
"Rating Agency" shall mean each of S&P and Fitch.
"Realized Loss" shall mean:
(1) with respect to each Trust Mortgage Loan and Serviced Non-Trust
Mortgage Loan as to which a Final Recovery Determination has been made, or
with respect to any REO Mortgage Loan as to which a Final Recovery
Determination has been made as to the related REO Property, or with respect
to any Trust Mortgage Loan that was the subject of a Permitted Purchase for
less than the applicable Purchase Price, an amount (not less than zero)
equal to the excess, if any, of (a) the sum of (i) the unpaid principal
balance of such Mortgage Loan or REO Mortgage Loan, as the case may be, as
of the commencement of the applicable Collection Period in which the Final
Recovery Determination or purchase, as the case may be, was made, plus (ii)
without taking into account the amount described in subclause (1)(b) of
this definition, all accrued but unpaid interest on such Mortgage Loan or
such REO Mortgage Loan, as the case may be, to but not including the Due
Date in the applicable Collection Period in which the Final Recovery
Determination or purchase, as the case may be, was made (exclusive,
however, of any portion of such accrued but unpaid interest that represents
Default Interest or, in the case of an ARD Mortgage Loan or any successor
REO Trust Mortgage Loan with respect thereto after its Anticipated
Repayment Date, Additional Interest), over (b) all payments and proceeds,
if any, received in respect of such Mortgage Loan or, to the extent
allocable to such REO Mortgage Loan, the related REO Property, as the case
may be, during the applicable Collection Period in which such Final
Recovery Determination or purchase, as the case may be, was made, insofar
as such payments and proceeds are allocable to interest (other than Default
Interest and Additional Interest) on or principal of such Mortgage Loan or
REO Mortgage Loan; provided that, in the case of any Outside Serviced Trust
Mortgage Loan or any related REO Trust Mortgage Loan that was the subject
of a Final Recovery Determination or a Permitted Purchase under the related
Outside Servicing Agreement and/or the related Co-Lender Agreement,
references to "Collection Period" in this clause (1) shall mean the related
Underlying Collection Period;
(2) with respect to each Trust Mortgage Loan and Serviced Non-Trust
Mortgage Loan as to which any portion of the principal or previously
accrued interest payable thereunder was canceled in connection with a
bankruptcy or similar proceeding involving the related Mortgagor or a
modification, extension, waiver or amendment of such Mortgage Loan granted
or agreed to by the Special Servicer pursuant to Section 3.20 (or, in the
case of an Outside Serviced Trust Mortgage Loan, by the applicable Outside
Servicer pursuant to the related Outside Servicing Agreement), the amount
of such principal and/or interest (other than Default Interest and, in the
case of an ARD Mortgage Loan after its Anticipated Repayment Date,
Additional Interest) so canceled;
(3) with respect to each Trust Mortgage Loan and Serviced Non-Trust
Mortgage Loan as to which the Mortgage Rate thereon has been permanently
reduced and not recaptured for any period in connection with a bankruptcy
or similar proceeding involving the related
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Mortgagor or a modification, extension, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant to
Section 3.20 (or, in the case of an Outside Serviced Trust Mortgage Loan,
by the applicable Outside Servicer pursuant to the related Outside
Servicing Agreement), the amount of the consequent reduction in the
interest portion of each successive Monthly Payment due thereon (each such
Realized Loss shall be deemed to have been incurred on the Due Date for
each affected Monthly Payment); and
(4) with respect to any Trust Mortgage Loan or REO Trust Mortgage
Loan, to the extent not otherwise taken into account as part of a Realized
Loss determined pursuant to any of clauses (1), (2) and (3) of this
definition, the amount of any related Advance that is reimbursed as a
Nonrecoverable Advance out of general collections on the Mortgage Pool (net
of any Recovered Amount in connection with the item for which such
Nonrecoverable Advance was made).
"Received by the Trust" shall mean: (a) in the case of an Outside
Serviced Trust Mortgage Loan or any related REO Property, received by the
Trustee (or the Master Servicer on behalf of the Trustee), as holder of the
Mortgage Note for such Outside Serviced Trust Mortgage Loan, on behalf of the
Trust; and (b) in the case of any other Trust Mortgage Loan or REO Property,
received by the Master Servicer or any of its Sub-Servicers, the Special
Servicer or any of its Sub-Servicers or the Trustee, as the case may be, in any
event on behalf of the Trust.
"Record Date" shall mean, with respect to any Distribution Date, the
last Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Recording/Filing Agent" shall have the meaning assigned thereto in
Section 2.01(c).
"Recovered Amount" shall have the meaning assigned thereto in Section
1.03(c).
"Reference Rate" shall mean, with respect to any Interest Accrual
Period, the applicable rate per annum set forth on the Reference Rate Schedule.
"Reference Rate Schedule" shall mean the list of Reference Rates set
forth on the schedule attached hereto as Schedule VIII.
"Registered Certificate" shall mean any Certificate that has been the
subject of registration under the Securities Act. As of the Closing Date, the
Class A-1, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-1A, Class X-CP,
Class A-M, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates are Registered Certificates.
"Regular Interest Certificate" shall mean any REMIC III Certificate
other than a Class R-III Certificate.
"Regulation S" shall mean Regulation S under the Securities Act.
"Regulation S Global Certificate" shall mean, with respect to any
Class of Book-Entry Non-Registered Certificates offered and sold outside of the
United States in reliance on Regulation S, one or collectively more global
Certificates of such Class registered in the name of the Depository or its
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nominee, in definitive, fully registered form without interest coupons, each of
which Certificates bears a Regulation S Legend.
"Regulation S Legend" shall mean, with respect to any Class of
Book-Entry Non-Registered Certificates offered and sold outside the United
States in reliance on Regulation S, a legend generally to the effect that such
Certificates may not be offered, sold, pledged or otherwise transferred in the
United States or to a United States Securities Person prior to the applicable
Regulation S Release Date, except pursuant to an exemption from the registration
requirements of the Securities Act.
"Regulation S Release Date" shall mean, with respect to any Class of
Book-Entry Non-Registered Certificates offered and sold outside the United
States in reliance on Regulation S, the date that is 40 days after the later of
(a) the commencement of the offering of such Certificates to Persons other than
distributors in reliance on Regulation S, and (b) the date of closing of the
offering.
"Reimbursement Rate" shall mean the rate per annum applicable to the
accrual of interest, compounded annually, on Servicing Advances in accordance
with Section 3.11(g) and on P&I Advances in accordance with Section 4.03(d),
which rate per annum is equal to the Prime Rate.
"Remaining Adjusted Principal Distribution Amount" shall mean, with
respect to any Class of Class B Through T Certificates for any Distribution
Date, an amount equal to the Adjusted Principal Distribution Amount for such
Distribution Date, reduced by all distributions of principal to be made on such
Distribution Date: (i) pursuant to Section 4.01(a) with respect to the Senior
Class A Certificates, the Class A-M Certificates and the Class A-J Certificates;
and (ii) pursuant to Section 4.01(b) with respect to any and all other Classes
of the Class B Through T Certificates that evidence a right to payment in
accordance with such Section 4.01(b) that is prior to the right to payment
evidenced by the subject Class of Class B Through T Certificates. The priority
of payments on the various Classes of the Class B Through T Certificates under
Section 4.01(b) shall be consistent with the alphabetic order of the respective
Class designations of such Classes of Certificates, with the Class B
Certificates entitling the Holders thereof to the highest payment priority under
Section 4.01(b) as among the respective Classes of the Class B Through T
Certificates and the Class T Certificates entitling the Holders thereof to the
lowest payment priority under Section 4.01(b) as among the respective Classes of
the Class B Through T Certificates.
"Remaining Available Distribution Amount" shall mean, with respect to
any Class of Class B Through T Certificates for any Distribution Date, an amount
equal to the Available Distribution Amount for such Distribution Date, reduced
by all distributions to be made on such Distribution Date: (i) pursuant to
Section 4.01(a) with respect to the Senior Certificates, the Class A-M
Certificates and the Class A-J Certificates; and (ii) pursuant to Section
4.01(b) with respect to any and all other Classes of the Class B Through T
Certificates that evidence a right to payment in accordance with such Section
4.01(b) that is prior to the right to payment evidenced by the subject Class of
Class B Through T Certificates. The priority of payments on the various Classes
of the Class B Through T Certificates under Section 4.01(b) shall be consistent
with the alphabetic order of the respective Class designations of such Classes
of Certificates, with the Class B Certificates entitling the Holders thereof to
the highest payment priority under Section 4.01(b) as among the respective
Classes of the Class B Through T Certificates and the Class T Certificates
entitling the Holders thereof to the lowest payment priority under Section
4.01(b) as among the respective Classes of the Class B Through T Certificates.
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"REMIC" shall mean a "real estate mortgage investment conduit" as
defined in Section 860D of the Code.
"REMIC I" shall mean the segregated pool of assets constituting the
primary trust created hereby and to be administered hereunder with respect to
which a separate REMIC election is to be made, and consisting of: (i) any Loan
REMIC Regular Interests; (ii) the Trust Mortgage Loans (exclusive of any Early
Defeasance Trust Mortgage Loans) as from time to time are subject to this
Agreement and all payments under and proceeds of such Trust Mortgage Loans
Received by the Trust after the Closing Date (other than any such payments
and/or proceeds that represent (A) scheduled payments of interest and principal
due in respect of the Trust Mortgage Loans on or before the Cut-off Date, or (B)
Additional Interest Received by the Trust in respect of the ARD Trust Mortgage
Loans, if any, after their respective Anticipated Repayment Dates), together
with all documents included in the related Mortgage Files; (iii) any REO
Properties (other than an REO Property acquired in respect of any Early
Defeasance Trust Mortgage Loan) as from time to time are subject to this
Agreement (or, in the case of any REO Property that relates to a Loan
Combination, the Trust's interest therein) and all income and proceeds
therefrom; (iv) such funds or assets (including any Initial Deposits) as from
time to time are deposited in the Pool Custodial Account, the Collection
Account, the Interest Reserve Account and, if established, the Pool REO Account,
exclusive of any such funds or assets that (A) are included in a Loan REMIC or
(B) represent Additional Interest Received by the Trust in respect of the ARD
Trust Mortgage Loans, if any, after their respective Anticipated Repayment
Dates; (v) to the extent not included in a Loan REMIC, the rights of the
Depositor under the UBS/Depositor Mortgage Loan Purchase Agreement; and (vi) the
rights of the holder of the Mortgage Note for each Trust Mortgage Loan that is
part of a Loan Combination under the related Co-Lender Agreement and, in the
case of each Outside Serviced Trust Mortgage Loan, under the related Outside
Servicing Agreement; provided that REMIC I shall not include the Non-Trust
Mortgage Loans or any successor REO Mortgage Loans with respect thereto or any
payments or other collections of principal, interest, Prepayment Consideration
or other amounts collected on such Non-Trust Mortgage Loans or any successor REO
Mortgage Loans with respect thereto; and provided, further, that REMIC I shall
not include the Loss of Value Reserve Fund or any amounts on deposit therein.
"REMIC I Regular Interest" shall mean any of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a "regular interest" in REMIC I, as described in the Preliminary
Statement hereto.
"REMIC I Remittance Rate" shall mean: (a) with respect to any REMIC I
Regular Interest issued in respect of a Loan REMIC Regular Interest, a rate per
annum that is, for any Interest Accrual Period, equal to the Loan REMIC
Remittance Rate with respect to such Loan REMIC Regular Interest for such
Interest Accrual Period; (b) with respect to any REMIC I Regular Interest that,
as of the Closing Date, corresponds to a Serviced Trust Mortgage Loan (other
than any Early Defeasance Trust Mortgage Loan) that accrues interest on a 30/360
Basis, a rate per annum that is, for any Interest Accrual Period, equal to (i)
the Mortgage Rate in effect for such corresponding Trust Mortgage Loan as of the
Closing Date (without regard to any modifications, extensions, waivers or
amendments of such corresponding Trust Mortgage Loan subsequent to the Closing
Date), minus (ii) the Administrative Cost Rate for such corresponding Trust
Mortgage Loan (or any successor REO Trust Mortgage Loan with respect thereto);
(c) with respect to any REMIC I Regular Interest that, as of the Closing Date,
corresponds to a Serviced Trust Mortgage Loan (other than any Early Defeasance
Trust Mortgage Loan) that accrues interest on an Actual/360 Basis, a rate per
annum that is, for any Interest Accrual Period,
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equal to (i) a fraction (expressed as a percentage), the numerator of which is
the product of 12 times the Adjusted Actual/360 Accrued Interest Amount with
respect to such REMIC I Regular Interest for such Interest Accrual Period, and
the denominator of which is the Uncertificated Principal Balance of such REMIC I
Regular Interest immediately prior to the Distribution Date that corresponds to
such Interest Accrual Period, minus (ii) the Administrative Cost Rate for the
corresponding Trust Mortgage Loan (or any successor REO Trust Mortgage Loan with
respect thereto); and (d) with respect to any REMIC I Regular Interest that, as
of the Closing Date, corresponds to an Outside Serviced Trust Mortgage Loan, a
rate per annum that is, for any Interest Accrual Period, equal to (i) a fraction
(expressed as a percentage), the numerator of which is the product of 12 times
the Adjusted Actual/360 Accrued Interest Amount with respect to such REMIC I
Regular Interest for such Interest Accrual Period, and the denominator of which
is the Uncertificated Principal Balance of such REMIC I Regular Interest
immediately prior to the Distribution Date that corresponds to such Interest
Accrual Period, minus (ii) the sum of the related Master Servicing Fee Rate plus
the Trustee Fee Rate.
"REMIC II" shall mean the segregated pool of assets consisting of all
of the REMIC I Regular Interests conveyed in trust to the Trustee for the
benefit of REMIC III, as holder of the REMIC II Regular Interests, and the
Holders of the Class R-II Certificates, pursuant to Section 2.09, with respect
to which a separate REMIC election is to be made.
"REMIC II Regular Interest" shall mean any of the 43 separate
non-certificated beneficial ownership interests in REMIC II issued hereunder and
designated as a "regular interest" in REMIC II. Each REMIC II Regular Interest
shall accrue interest at its REMIC II Remittance Rate in effect from time to
time and, further, shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto. The designations for the respective REMIC II Regular Interests are set
forth in the Preliminary Statement hereto.
"REMIC II Remittance Rate" shall mean, with respect to any REMIC II
Regular Interest for any Interest Accrual Period, an annual rate equal to the
Weighted Average REMIC I Remittance Rate for such Interest Accrual Period.
"REMIC III" shall mean the segregated pool of assets consisting of all
of the REMIC II Regular Interests conveyed in trust to the Trustee for the
benefit of the Holders of the REMIC III Certificates, pursuant to Section 2.11,
with respect to which a separate REMIC election is to be made.
"REMIC III Certificate" shall mean any Class A-1, Class X-0, Xxxxx
X-0, Class A-AB, Class A-4, Class A-1A, Class X-CL, Class X-CP, 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 P, Class Q, Class S, Class T or Class
R-III Certificate.
"REMIC III Component" shall mean:
(a) with respect to the Class X-CL Certificates, any of the Class X-XX
XXXXX III Components; and
(b) with respect to the Class X-CP Certificates, any of the Class X-CP
REMIC III Components.
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"REMIC Pool" shall mean any of REMIC I, REMIC II, REMIC III and,
subject to Section 2.06(b), the Loan REMICs.
"REMIC Provisions" shall mean the provisions of the federal income tax
law relating to REMICs, which appear at Sections 860A through 860G of Subchapter
M of Chapter 1 of the Code, and related provisions, and proposed, temporary and
final Treasury regulations and any published rulings, notices and announcements
promulgated thereunder, as the foregoing may be in effect from time to time.
"Rents from Real Property" shall mean, with respect to any REO
Property, gross income of the character described in Section 856(d) of the Code.
"REO Account" shall mean the Pool REO Account or a Loan Combination
REO Account, as applicable.
"REO Acquisition" shall mean the acquisition of any REO Property
pursuant to Section 3.09 (or, in the case of any REO Property relating to an
Outside Serviced Trust Mortgage Loan, pursuant to the related Outside Servicing
Agreement).
"REO Disposition" shall mean the sale or other disposition of any
Administered REO Property pursuant to Section 3.18 (or, in the case of any REO
Property relating to an Outside Serviced Trust Mortgage Loan, pursuant to the
related Outside Servicing Agreement).
"REO Extension" shall have the meaning assigned thereto in Section
3.16(a).
"REO Mortgage Loan" shall mean the mortgage loan (or, if a Serviced
Loan Combination is involved, one of the two or more mortgage loans comprising
such Loan Combination) deemed for purposes hereof to be outstanding with respect
to each REO Property. Each REO Mortgage Loan shall be deemed to relate to and
succeed the Mortgage Loan (or, in the case of any REO Property that relates to a
Serviced Loan Combination, one of the two or more Mortgage Loans) relating to
the subject REO Property. Each REO Mortgage Loan shall be deemed to provide for
monthly payments of principal and/or interest equal to its Assumed Monthly
Payment and otherwise to have the same terms and conditions as its predecessor
Mortgage Loan (such terms and conditions to be applied without regard to the
default on such predecessor Mortgage Loan and the acquisition of the related REO
Property as part of the Trust Fund or, if applicable in the case of any REO
Property that relates to a Loan Combination, on behalf of the Trust and the
related Non-Trust Mortgage Loan Noteholder(s)). Each REO Mortgage Loan shall be
deemed to have an initial unpaid principal balance and, if applicable hereunder,
an initial Stated Principal Balance equal to the unpaid principal balance and
Stated Principal Balance, respectively, of its predecessor Mortgage Loan as of
the date of the related REO Acquisition. All Monthly Payments (other than a
Balloon Payment), Assumed Monthly Payments (in the case of a Balloon Mortgage
Loan delinquent in respect of its Balloon Payment) and other amounts due and
owing, or deemed to be due and owing, in respect of the predecessor Mortgage
Loan as of the date of the related REO Acquisition, shall be deemed to continue
to be due and owing in respect of an REO Mortgage Loan. Amounts Received by the
Trust (or, if applicable, received on behalf of the related Serviced Non-Trust
Mortgage Loan Noteholder) with respect to each REO Mortgage Loan (after
provision for amounts to be applied to the payment of, or to be reimbursed to
the Master Servicer or the Special Servicer for the payment of, the costs of
operating, managing and maintaining any related Administered REO Property or for
the reimbursement of the Master Servicer, the Special Servicer, the Trustee or
the
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Fiscal Agent for any other related Servicing Advances, but otherwise without
regard to any Advances, Advance Interest, fees, costs, expenses and other
potential Additional Trust Fund Expenses payable or reimbursable therefrom until
after the following applications have been made) shall be treated: first, as a
recovery of accrued and unpaid interest on such REO Mortgage Loan at the related
Mortgage Rate (net, in the case of any successor REO Mortgage Loan in respect of
an Outside Serviced Trust Mortgage Loan, of the related "Outside Servicing Fee
Rate") to but not including the Due Date in the related Collection Period of
receipt (exclusive, however, in the case of an REO Mortgage Loan that relates to
an ARD Mortgage Loan after its Anticipated Repayment Date, of any such accrued
and unpaid interest that constitutes Additional Interest); second, as a recovery
of principal of such REO Mortgage Loan to the extent of its entire unpaid
principal balance; third, in accordance with the normal servicing practices of
the Master Servicer, as a recovery of any other amounts (or, in the case of an
REO Mortgage Loan in respect of an Outside Serviced Trust Mortgage Loan, any
Prepayment Consideration) due and owing in respect of such REO Mortgage Loan
(exclusive, however, in the case of an REO Mortgage Loan that relates to an ARD
Mortgage Loan after its Anticipated Repayment Date, of any such accrued and
unpaid interest that constitutes Additional Interest); and fourth, in the case
of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its
Anticipated Repayment Date, as a recovery of accrued and unpaid Additional
Interest on such REO Mortgage Loan; provided that, in the case of an REO
Mortgage Loan in respect of an Outside Serviced Trust Mortgage Loan, if an
allocation in accordance with this sentence would conflict with remittance
reports from the applicable Outside Servicer, the Master Servicer shall, in the
absence of actual knowledge of an error, rely on the allocation in such
remittance reports; and provided, further, that, if one or more Advances
previously made in respect of an REO Trust Mortgage Loan have been reimbursed
out of general collections of principal on the Mortgage Pool as one or more
Nonrecoverable Advances, then collections in respect of such REO Trust Mortgage
Loan available for application pursuant to clauses first through fourth of this
sentence shall instead be applied in the following order--(i) as a recovery of
accrued and unpaid interest on, and principal of, such REO Trust Mortgage Loan,
to the extent of any outstanding P&I Advances and unpaid Master Servicing Fees
in respect of such REO Trust Mortgage Loan, (ii) as a recovery of the item(s)
for which such previously reimbursed Nonrecoverable Advance(s) were made
(together with any interest on such previously reimbursed Nonrecoverable
Advance(s) that was also paid out of general collections of principal on the
Mortgage Pool), and (iii) in accordance with clauses first through fourth of
this sentence (taking into account the applications pursuant to clauses (i) and
(ii) of this proviso); and provided, further, that if the Mortgage Loans
comprising any Serviced Loan Combination become REO Mortgage Loans, amounts
(other than Loss of Value Payments deemed to constitute Liquidation Proceeds
with respect to the REO Trust Mortgage Loan in such Serviced Loan Combination
and other than Liquidation Proceeds resulting from the purchase of the Trust's
interest in any related REO Property pursuant to or as contemplated by Section
2.03) received with respect to such REO Mortgage Loans shall be applied to
amounts due and owing in respect of such REO Mortgage Loans as provided in the
related Co-Lender Agreement; and provided, further, that Loss of Value Payments
shall not be applied in accordance with the foregoing provisions of this
definition unless and until such amounts are transferred to the Pool Custodial
Account, and deemed to constitute Liquidation Proceeds in respect of a
particular REO Trust Mortgage Loan, in accordance with Section 3.05(e).
Notwithstanding the foregoing, all amounts payable or reimbursable to the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent in respect of
the predecessor Mortgage Loan as of the date of the related REO Acquisition,
including any unpaid Servicing Fees and any unreimbursed Servicing Advances and
P&I Advances, together with any interest accrued and payable to the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent in respect of
such Servicing Advances and P&I Advances in accordance with Sections 3.11(g) and
4.03(d), respectively, shall continue to be payable or reimbursable to the
Master Servicer, the Special Servicer, the Trustee or
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the Fiscal Agent, as the case may be, in respect of an REO Mortgage Loan. The
foregoing allocations are not intended to limit the rights of the parties
hereunder to reimbursements or indemnities to which they are otherwise entitled
hereunder.
"REO Property" shall mean a Mortgaged Property acquired on behalf and
in the name of the Trustee for the benefit of the Certificateholders (or, in the
case of a Mortgaged Property related to a Serviced Loan Combination, for the
benefit of the Certificateholders and the related Non-Trust Mortgage Loan
Noteholder(s), as their interests may appear), through foreclosure, acceptance
of a deed-in-lieu of foreclosure or otherwise in accordance with applicable law
in connection with the default or imminent default of a Mortgage Loan (or a Loan
Combination); provided that the Mortgaged Property securing an Outside Serviced
Loan Combination (if acquired under the related Outside Servicing Agreement)
shall constitute an REO Property if such Mortgaged Property is so acquired for
the benefit of the related Non-Trust Mortgage Loan Noteholder(s) and the Trust,
as their interests may appear, through foreclosure, acceptance of a deed-in-lieu
of foreclosure or otherwise in accordance with applicable law in connection with
a default or imminent default of the subject Outside Serviced Loan Combination.
"REO Revenues" shall mean all income, rents, profits and proceeds
derived from the ownership, operation or leasing of any REO Property.
"REO Tax" shall have the meaning assigned thereto in Section 3.17(a).
"REO Trust Mortgage Loan" shall mean the successor REO Mortgage Loan
with respect to any Trust Mortgage Loan as to which the related Mortgaged
Property has become an REO Property.
"Request for Release" shall mean a request signed by a Servicing
Officer of, as applicable, the Master Servicer in the form of Exhibit D-1
attached hereto or the Special Servicer in the form of Exhibit D-2 attached
hereto.
"Required Appraisal" shall mean, with respect to each Required
Appraisal Loan, an appraisal of the related Mortgaged Property from an
Independent Appraiser selected by the party required or authorized to obtain
such appraisal hereunder, which appraisal shall be prepared in accordance with
12 CFR Section 225.62 and conducted in accordance with the standards of the
Appraisal Institute or, in the case of a Required Appraisal Loan having a Stated
Principal Balance of, or in the case of a Mortgaged Property that has an
allocated loan amount of, less than $2,000,000, if no satisfactory (as
determined by the Special Servicer pursuant to Section 3.09(a)) appraisal
meeting the foregoing criteria was obtained or conducted within the prior 12
months, a "desktop" value estimate performed by the Special Servicer.
"Required Appraisal Loan" shall mean any Serviced Mortgage Loan:
(i) that becomes a Modified Loan;
(ii) that is 60 days or more delinquent in respect of any Monthly
Payment, except for a Balloon Payment;
(iii) that is delinquent in respect of its Balloon Payment, if any,
(A) for one (1) Business Day beyond the date on which such Balloon Payment
was due (unless clause (B) below
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applies) or (B) if the related Mortgagor shall have delivered a refinancing
commitment acceptable to the Special Servicer prior to the date when such
Balloon Payment was due, for 30 days beyond the date on which such Balloon
Payment was due (or for such shorter period ending on the date on which it
is determined that the refinancing could not reasonably be expected to
occur);
(iv) with respect to which the related Mortgaged Property has become
an REO Property;
(v) with respect to which a receiver or similar official is appointed
and continues for 60 days in such capacity in respect of the related
Mortgaged Property;
(vi) with respect to which the related Mortgagor is subject to a
bankruptcy, insolvency or similar proceedings, which, in the case of an
involuntary bankruptcy, insolvency or similar proceeding, has not been
dismissed within 60 days of the commencement thereof; or
(vii) that remains outstanding five years following any extension of
its maturity date pursuant to Section 3.20;
provided that all of the Mortgage Loans comprising a Serviced Loan Combination
shall, upon the occurrence of any of the events described in clauses (i) through
(vii) of this definition in respect of any such Mortgage Loan, be deemed to be a
single "Required Appraisal Loan". Any Required Appraisal Loan shall cease to be
such at such time as it has become a Corrected Mortgage Loan (assuming such
Required Appraisal Loan was a Specially Serviced Mortgage Loan), it has remained
current for at least three consecutive Monthly Payments, and no other event
described in clauses (i) through (vii) above has occurred with respect thereto
during the preceding three-month period. The term "Required Appraisal Loan"
shall include any successor REO Mortgage Loan(s) in respect of a Serviced Trust
Mortgage Loan or Serviced Loan Combination. In no event shall any Outside
Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with
respect thereto or any Outside Serviced Loan Combination constitute a Required
Appraisal Loan hereunder.
"Required Appraisal Value" shall mean, with respect to any Mortgaged
Property securing (or REO Property relating to) a Required Appraisal Loan, an
amount equal to the sum of: (a) the excess, if any, of (i) 90% of the Appraised
Value of such Mortgaged Property (or REO Property) as determined by the most
recent Required Appraisal or any letter update of such Required Appraisal (as
such Appraised Value may be reduced by the Special Servicer, acting in
accordance with the Servicing Standard, based upon the Special Servicer's review
of the subject Required Appraisal and such other information that the Special
Servicer, acting in accordance with the Servicing Standard, deems relevant
(provided that the Special Servicer shall not be obligated to make any such
reduction)), over (ii) the amount of any obligations secured by liens on such
Mortgaged Property (or REO Property) that are prior to the lien of the related
Required Appraisal Loan; plus (b) the amount of Escrow Payments and Reserve
Funds held by the Master Servicer in respect of such Required Appraisal Loan
that (i) are not being held for purposes of paying any real estate taxes and
assessments, insurance premiums or, if applicable, ground rents, (ii) are not
otherwise scheduled to be applied or utilized (except to pay debt service on
such Required Appraisal Loan) within the 12-month period following the date of
determination and (iii) may be applied towards the reduction of the principal
balance of such Required Appraisal Loan; plus (c) the amount of any letter of
credit constituting additional security for such Required Appraisal
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Loan and that may be drawn upon for purposes of paying down the principal
balance of such Required Appraisal Loan.
"Required Insurer Rating" shall mean:
(i) for purposes of Sections 3.07(a) and 3.07(b), a "claims paying
ability", "financial strength" or comparable rating, as applicable, of at
least "A" from S&P and "A" from Fitch (or, if not then rated by Fitch, an
equivalent rating thereto from at least one nationally recognized
statistical rating agency in addition to S&P or a rating of "A:IX" or
better from A.M. Best's Key Rating Guide) or, in the case of either such
Rating Agency, such lower rating as will not result in an Adverse Rating
Event with respect to any Class of Certificates rated by such Rating
Agency; and
(ii) for purposes of Section 3.07(c), a "claims paying ability",
"financial strength" or comparable rating, as applicable, of at least "A"
from S&P and "A" from Fitch (or, if not then rated by Fitch, an equivalent
rating thereto from at least one nationally recognized statistical rating
agency in addition to S&P or a rating of "A:IX" or better from A.M. Best's
Key Rating Guide) or, in the case of either such Rating Agency, such lower
rating as will not result in an Adverse Rating Event with respect to any
Class of Certificates rated by such Rating Agency (as evidenced in writing
by such Rating Agency).
"Reserve Account" shall have the meaning assigned thereto in Section
3.03(d).
"Reserve Funds" shall mean, with respect to any Mortgage Loan, any
amounts delivered by the related Mortgagor to be held by or on behalf of the
mortgagee representing reserves for repairs, capital improvements and/or
environmental remediation in respect of the related Mortgaged Property or debt
service on such Mortgage Loan.
"Residual Interest Certificate" shall mean any of the Class R-I
Certificates, the Class R-II Certificates, the Class R-III Certificates or, if
issued in accordance with Section 2.06, the Class R-LR Certificates.
"Resolution Extension Period" shall have the meaning assigned thereto
in Section 2.03(a).
"Responsible Officer" shall mean: (a) when used with respect to the
Trustee, any Vice President, any Assistant Vice President, any Trust Officer,
any Assistant Secretary or any other officer of the Trustee's Global Securities
and Trust Services Group customarily performing functions similar to those
performed by any of the above designated officers and having direct
responsibility for the administration of this Agreement; and (b) when used with
respect to the Fiscal Agent, any officer thereof.
"Review Package" shall mean a package of documents consisting of a
memorandum outlining the analysis and recommendation (in accordance with the
Servicing Standard) of the Master Servicer or the Special Servicer, as the case
may be, with respect to the matters that are the subject thereof, and copies of
all relevant documentation.
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"Rule 144A Global Certificate" shall mean, with respect to any Class
of Book-Entry Non-Registered Certificates, one or collectively more global
certificates of such Class registered in the name of the Depository or its
nominee, in definitive, fully registered form without interest coupons, none of
which certificates bears a Regulation S Legend, and each of which certificates
has a Rule 144A CUSIP number.
"S&P" shall mean Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. or its successor in interest. If neither such rating
agency nor any successor remains in existence, "S&P" shall be deemed to refer to
such other nationally recognized statistical rating agency or other comparable
Person designated by the Depositor, notice of which designation shall be given
to the Trustee, the Fiscal Agent, the Master Servicer and the Special Servicer,
and specific ratings of Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. herein referenced shall be deemed to refer to the
equivalent ratings of the party so designated.
"Xxxxxxxx-Xxxxx Act" shall have the meaning assigned thereto in
Section 8.15(d).
"Xxxxxxxx-Xxxxx Certification" shall have the meaning assigned thereto
in Section 8.15(d).
"SASCO II" shall mean Structured Asset Securities Corporation II or
any successor in interest.
"Scheduled Payment" shall mean, with respect to any Trust Mortgage
Loan or Serviced Non-Trust Mortgage Loan, for any Due Date following the Cut-off
Date as of which it is outstanding, the Monthly Payment on such Mortgage Loan
that is or would be, as the case may be, payable by the related Mortgagor on
such Due Date under the terms of the related Mortgage Note as in effect on the
Closing Date, without regard to any subsequent change in or modification of such
terms in connection with a bankruptcy or similar proceeding involving the
related Mortgagor or a modification, extension, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant to Section
3.20 (or, in the case of an Outside Serviced Trust Mortgage Loan, by the
applicable Outside Servicer pursuant to the related Outside Servicing
Agreement), and assuming that the full amount of each prior Scheduled Payment
has been made in a timely manner.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Seller/Depositor Notification" shall mean, with respect to any Trust
Mortgage Loan, a written notification executed (in each case promptly upon
becoming aware of such event) by a Responsible Officer of the Trustee, or a
Servicing Officer of the Master Servicer or the Special Servicer, as applicable,
and delivered to the Master Servicer, the Special Servicer and the Trustee
(except to the extent any of the foregoing three parties is the party delivering
the subject Seller/Depositor Notification) and, as applicable, to either the UBS
Mortgage Loan Seller (in the case of a UBS Trust Mortgage Loan) or the Depositor
(in the case of a Xxxxxx Trust Mortgage Loan), in each case identifying and
describing the circumstances relating to any of the events set forth below,
which notification shall be substantially in the form of Exhibit N attached
hereto:
(i) the occurrence of a Material Document Defect or Material Breach
with respect to the subject Trust Mortgage Loan;
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(ii) the direction to cure the Material Document Defect or Material
Breach with respect to the subject Trust Mortgage Loan in all material
respects, or repurchase the subject Trust Mortgage Loan, within the time
period and subject to the conditions provided for in Section 2.03(a) (in
the case of a Xxxxxx Trust Mortgage Loan) or Section 5(a) of the
UBS/Depositor Mortgage Loan Purchase Agreement (in the case of a UBS Trust
Mortgage Loan), as applicable;
(iii) following or simultaneously with the occurrence of a Material
Document Defect, the existence or occurrence of a Servicing Transfer Event
with respect to the subject Trust Mortgage Loan;
(iv) following or simultaneously with the occurrence of a Material
Document Defect, the existence or occurrence of an assumption or a proposed
assumption with respect to the subject Trust Mortgage Loan;
(v) only (A) under the circumstances contemplated by the last
paragraph of Section 2.03(a) (in the case of a Xxxxxx Trust Mortgage Loan)
or Section 5(a) of the UBS/Depositor Mortgage Loan Purchase Agreement (in
the case of a UBS Trust Mortgage Loan), as applicable, and (B) following
the expiration of the applicable Resolution Extension Period and (C)
following either the occurrence of a Servicing Transfer Event or an
assumption with respect to the subject Trust Mortgage Loan, as applicable,
the direction to cure the subject Material Document Defect in all material
respects within 15 days of receipt of such Seller/Depositor Notification;
(vi) following the expiration of the 15-day period set forth in clause
(v) above, notification of the election by the Master Servicer or the
Special Servicer, as applicable, to perform the cure obligations with
respect to the subject Material Document Defect; and/or
(vii) the expiration of the applicable Resolution Extension Period
with respect to such Trust Mortgage Loan and the direction to promptly
repurchase such Trust Mortgage Loan.
In addition to the foregoing parties, a copy of each such Seller/Depositor
Notification shall be delivered to the Controlling Class Representative by the
Trustee (to the extent the Trustee knows the identity of the Controlling Class
Representative) and, in the case of an event described in clauses (v) and/or
(vii) of this definition, to internal counsel to the Depositor or counsel to the
UBS Mortgage Loan Seller, as applicable (to the extent known to the Trustee).
"Seller/Depositor Resolution Period" shall mean the 90-day period
following the related Mortgage Loan Seller's receipt of a Seller/Depositor
Notification with respect to the Material Document Defect or Material Breach
that gave rise to the particular repurchase obligation; provided, however, that
if (i) such Material Document Defect or Material Breach is capable of being
cured but not within such 90-day period, (ii) the Depositor (in the case of a
Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in the case of a
UBS Trust Mortgage Loan), as the case may be, has commenced and is diligently
proceeding with the cure of such Material Document Defect or Material Breach
within such initial 90-day period, and (iii) the Depositor (in the case of a
Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in the case of a
UBS Trust Mortgage Loan), as the case may be, delivers an Officer's Certificate
to the Special Servicer setting forth the reasons such Material Document Defect
or Material Breach is not capable of being cured within the initial 90-day
period and what actions such party is pursuing in connection with the cure
thereof, then the Seller/Depositor Resolution Period shall
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mean the 180-day period following the related Mortgage Loan Seller's receipt of
a Seller/Depositor Notification with respect to the Material Document Defect or
Material Breach that gave rise to the particular repurchase obligation; and
provided, further, that, if any such Material Document Defect is still not cured
after the 180-day period following the related Mortgage Loan Seller's receipt of
a Seller/Depositor Notification with respect to the Material Document Defect or
Material Breach that gave rise to the particular repurchase obligation solely
due to the failure of the Depositor (in the case of a Xxxxxx Trust Mortgage
Loan) or the UBS Mortgage Loan Seller (in the case of a UBS Trust Mortgage
Loan), as the case may be, to have received a recorded document, then the
Seller/Depositor Resolution Period shall continue for an additional period of
time so long as the Depositor or the UBS Mortgage Loan Seller, as applicable,
certifies to the Special Servicer every six months thereafter that the Document
Defect is still in effect solely because of its failure to have received the
recorded document and that such party is diligently pursuing the cure of such
defect.
"Senior Certificate" shall mean any Class A-1, Class X-0, Xxxxx X-0,
Class A-AB, Class A-4, Class A-1A, Class X-CL or Class X-CP Certificate.
"Senior Class A Certificates" shall mean the Class A-1, Class X-0,
Xxxxx X-0, Class A-AB, Class A-4 and Class A-1A Certificates.
"Senior Class A Principal Distribution Cross-Over Date" shall mean the
first Distribution Date as of the commencement of business on which (i) any two
or more Classes of the Senior Class A Certificates remain outstanding and (ii)
the aggregate of the Class Principal Balances of the Class A-M, Class A-J, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class
L, Class M, Class N, Class P, Class Q, Class S and Class T Certificates has been
reduced to zero as a result of the allocation of Realized Losses and Additional
Trust Fund Expenses pursuant to Section 4.04(a).
"Series FB 2005-1 Certificates" shall have the meaning assigned
thereto in the Preliminary Statement.
"Series FB 2005-1 Securitization" shall have the meaning assigned
thereto in the Preliminary Statement.
"Serviced Combination Trust Mortgage Loan" shall mean the 000 Xxxx
Xxxxxxx Trust Mortgage Loan or any other Serviced Note A Trust Mortgage Loan, as
applicable.
"Serviced A/B Loan Combination" shall have the meaning assigned
thereto in the Preliminary Statement.
"Serviced Loan Combination" shall mean any Loan Combination that is to
be primarily serviced and administered under this Agreement. The Serviced A/B
Loan Combinations will be, and the Outside Serviced Loan Combinations will not
be, Serviced Loan Combinations.
"Serviced Loan Combination Change of Control Event" shall mean: (a)
with respect to the 000 Xxxx Xxxxxxx Trust Loan Combination only, the event that
occurs when (i) the outstanding principal amount of the 000 Xxxx Xxxxxxx Note B
Non-Trust Mortgage Loan or any successor REO Mortgage Loans with respect thereto
(net of any existing Appraisal Reduction Amount with respect to the 000 Xxxx
Xxxxxxx Loan Combination) is less than 27.5% of an amount equal to the original
principal amount of the 000 Xxxx Xxxxxxx Note B Non-Trust Mortgage Loan, and
(ii) the 000 Xxxx
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Xxxxxxx Trust Mortgage Loan or any successor REO Trust Mortgage Loan with
respect thereto has not been repaid in full; and (b) with respect to each
Serviced Loan Combination (other than the 000 Xxxx Xxxxxxx Loan Combination),
the event that occurs when (i) the aggregate outstanding principal amount of the
related Serviced Note B Non-Trust Mortgage Loan or any successor REO Mortgage
Loan with respect thereto (net of any existing Appraisal Reduction Amount with
respect to the subject Serviced Loan Combination) is less than 25.0% of an
amount equal to the original principal amount of such Serviced Note B Non-Trust
Mortgage Loan, and (ii) the related Serviced Note A Trust Mortgage Loan or any
successor REO Trust Mortgage Loan with respect thereto has not been repaid in
full.
"Serviced Loan Combination Controlling Party" shall mean, with respect
to any Serviced Loan Combination or any related REO Property, the related
Serviced Combination Directing Lender or any representative appointed thereby,
consistent with Section 3.02(d) of the related Co-Lender Agreement, to exercise
the rights and powers of the related Serviced Combination Directing Lender under
the related Co-Lender Agreement or this Agreement.
"Serviced Loan Combination Directing Lender" shall mean, with respect
to any Serviced Loan Combination, as of any date of determination, the
"Directing Lender" under the related Co-Lender Agreement.
"Serviced Mortgage Loan" shall mean each Mortgage Loan (including a
Specially Serviced Mortgage Loan), other than any Mortgage Loan that is part of
an Outside Serviced Loan Combination.
"Serviced Non-Trust Mortgage Loan" shall mean each Non-Trust Mortgage
Loan that is a Serviced Mortgage Loan. A Non-Trust Mortgage Loan that is part of
an Outside Serviced Loan Combination shall in no event constitute a Serviced
Non-Trust Mortgage Loan hereunder.
"Serviced Non-Trust Mortgage Loan Noteholder" shall mean each holder
of the Mortgage Note for a Serviced Non-Trust Mortgage Loan. Notwithstanding
anything herein to the contrary, no 000 Xxxx Xxxxxx Non-Trust Mortgage Loan
Noteholder, Courtyard by Marriott Non-Trust Mortgage Loan Noteholder, 1345
Avenue of the Americas Non-Trust Mortgage Loan Noteholder or Park Avenue Plaza
Non-Trust Mortgage Loan Noteholder shall in any event constitute a Serviced
Non-Trust Mortgage Loan Noteholder hereunder.
"Serviced Note A Trust Mortgage Loan" shall have the meaning assigned
thereto in the Preliminary Statement.
"Serviced Note B Non-Trust Mortgage Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"Serviced Senior Mortgage Loan" shall mean any of the Serviced
Combination Trust Mortgage Loans.
"Serviced Subordinate Non-Trust Mortgage Loan" shall mean each
Subordinate Non-Trust Mortgage Loan that is a Serviced Non-Trust Mortgage Loan.
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"Serviced Trust Mortgage Loan" shall mean any Trust Mortgage Loan that
is a Serviced Mortgage Loan. Notwithstanding anything herein to the contrary, no
Outside Serviced Trust Mortgage Loan shall in any event constitute a Serviced
Trust Mortgage Loan hereunder.
"Servicer Backup Certification" shall mean the Master Servicer Backup
Certification or the Special Servicer Backup Certification, as applicable.
"Servicer Fee Amount" shall mean: (a) with respect to each
Sub-Servicer, as of any date of determination, the aggregate of the products
obtained by multiplying, for each Serviced Mortgage Loan primary serviced by
such Sub-Servicer (and any successor REO Mortgage Loan with respect thereto),
(i) the principal balance of such Mortgage Loan as of the end of the immediately
preceding applicable Collection Period and (ii) the sub-servicing fee rate
specified in the related Sub-Servicing Agreement for such Mortgage Loan; and (b)
with respect to the Master Servicer, as of any date of determination, the
aggregate of the products obtained by multiplying, for each Serviced Mortgage
Loan (and any successor REO Mortgage Loan with respect thereto), (i) the
principal balance of such Mortgage Loan as of the end of the immediately
preceding applicable Collection Period and (ii) the excess, if any, of the
Master Servicing Fee Rate for such Mortgage Loan, over the sub-servicing fee
rate (if any) applicable to such Mortgage Loan, as specified in any
Sub-Servicing Agreement related to such Mortgage Loan.
"Servicer Notice" shall have the meaning assigned thereto in Section
3.14.
"Servicer Reports" shall mean each of the files and reports comprising
the CMSA Investor Reporting Package (excluding the CMSA Bond Level File and the
CMSA Collateral Summary File) and the Supplemental Report.
"Servicing Account" shall have the meaning assigned thereto in Section
3.03(a).
"Servicing Advances" shall mean all customary, reasonable and
necessary "out of pocket" costs and expenses (including attorneys' fees and fees
and expenses of real estate brokers) incurred by the Master Servicer, the
Special Servicer, the Fiscal Agent or the Trustee in connection with the
servicing and administration of a Serviced Mortgage Loan, if a default is
imminent thereunder or a default, delinquency or other unanticipated event has
occurred with respect thereto, or in connection with the administration of any
Administered REO Property, including, but not limited to, the cost of (a)
compliance with the obligations of the Master Servicer, the Special Servicer,
the Fiscal Agent or the Trustee, if any, set forth in Section 3.03(c), (b) the
preservation, insurance, restoration, protection and management of a Mortgaged
Property, (c) obtaining any Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds, (d) any enforcement or judicial proceedings with respect
to a Mortgaged Property, including foreclosures, (e) any Required Appraisal or
any other appraisal or update thereof expressly permitted or required to be
obtained hereunder, (f) the operation, management, maintenance and liquidation
of any REO Property, and (g) obtaining any related ratings confirmation;
provided that, notwithstanding anything to the contrary, "Servicing Advances"
shall not include allocable overhead of the Master Servicer, the Special
Servicer or the Trustee, such as costs for office space, office equipment,
supplies and related expenses, employee salaries and related expenses and
similar internal costs and expenses, or costs and expenses incurred by any such
party in connection with its purchase of any Mortgage Loan or REO Property
pursuant to any provision of this Agreement, any Outside Servicing Agreement,
any Co-Lender Agreement or any intercreditor agreement relating to mezzanine
debt.
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"Servicing Fees" shall mean: (a) with respect to each Serviced
Mortgage Loan (and any successor REO Mortgage Loan with respect thereto), the
Master Servicing Fee and the Special Servicing Fee; and (b) with respect to each
Outside Serviced Trust Mortgage Loan (or any successor REO Trust Mortgage Loan
with respect thereto), the Master Servicing Fee.
"Servicing File" shall mean, collectively, any and all documents
(other than documents required to be part of the related Mortgage File, except
as specifically provided below in this definition), in the possession of the
Master Servicer or the Special Servicer and relating to the origination and
servicing of any Serviced Mortgage Loan, including any original letter of credit
(together with any transfer or assignment documents related thereto), any
franchise agreement and any franchise comfort letter (together with any transfer
or assignment documents relating thereto), appraisals, surveys, engineering
reports, environmental reports, opinion letters of counsel to a related
Mortgagor, escrow agreements, property management agreements and, in the case of
a Serviced Non-Trust Mortgage Loan, a copy of the related Mortgage Note.
"Servicing Officer" shall mean any officer or employee of the Master
Servicer or the Special Servicer involved in, or responsible for, the
administration and servicing of the Serviced Mortgage Loans, whose name and
specimen signature appear on a list of servicing officers furnished by such
party to the Trustee and the Depositor on the Closing Date, as such list may be
amended from time to time.
"Servicing-Released Bid" shall have the meaning assigned thereto in
Section 7.01(c).
"Servicing-Retained Bid" shall have the meaning assigned thereto in
Section 7.01(c).
"Servicing Standard" shall mean, with respect to the Master Servicer
or the Special Servicer, to service and administer the Serviced Mortgage Loans
and any Administered REO Properties that such party is obligated to service and
administer pursuant to this Agreement: (i) in accordance with the higher of the
following standards of care: (A) the same manner in which, and with the same
care, skill, prudence and diligence with which, the Master Servicer or the
Special Servicer, as the case may be, services and administers comparable
mortgage loans with similar borrowers and comparable foreclosure properties for
other third-party portfolios (giving due consideration to the customary and
usual standards of practice of prudent institutional commercial mortgage lenders
servicing their own mortgage loans and foreclosure properties), and (B) the same
manner in which, and with the same care, skill, prudence and diligence with
which, the Master Servicer or Special Servicer, as the case may be, services and
administers comparable mortgage loans and foreclosure properties owned by the
Master Servicer or Special Servicer, as the case may be, in either case
exercising reasonable business judgment and acting in accordance with applicable
law, the terms of this Agreement and the terms of the respective Serviced
Mortgage Loans and any applicable co-lender, intercreditor and/or similar
agreements; (ii) with a view to: (A) the timely recovery of all payments of
principal and interest, including Balloon Payments, under the Serviced Mortgage
Loans or, in the case of any such Serviced Mortgage Loan that is (1) a Specially
Serviced Mortgage Loan or (2) a Serviced Mortgage Loan as to which the related
Mortgaged Property has become an REO Property, the maximization of recovery on
the subject Serviced Mortgage Loan to the Certificateholders (as a collective
whole) (or, if a Serviced Loan Combination is involved, the maximization of
recovery on such Loan Combination to the Certificateholders and the related
Serviced Non-Trust Mortgage Loan Noteholder(s) (as a collective whole)) of
principal and interest, including Balloon Payments, on a present value basis
(the relevant
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discounting of anticipated collections that will be distributable to the
Certificateholders (or, if a Serviced Loan Combination is involved, to the
Certificateholders and the related Serviced Non-Trust Mortgage Loan
Noteholder(s) (as a collective whole)) to be performed at the related Mortgage
Rate (or, in the case of a Serviced Loan Combination, at the weighted average of
the respective Mortgage Rates for the Mortgage Loans that comprise such Loan
Combination); and (iii) without regard to (A) any relationship, including as
lender on any other debt (including mezzanine debt or a Non-Trust Mortgage
Loan), that the Master Servicer or the Special Servicer, as the case may be, or
any Affiliate thereof, may have with any of the related Mortgagors, or any
Affiliate thereof, or any other party to this Agreement, (B) the ownership of
any Certificate or any direct or indirect interest in a Non-Trust Mortgage Loan
by the Master Servicer or the Special Servicer, as the case may be, or any
Affiliate thereof, (C) the obligation of the Master Servicer or the Special
Servicer, as the case may be, to make Advances, (D) the right of the Master
Servicer or the Special Servicer, as the case may be, or any Affiliate thereof,
to receive compensation or reimbursement of costs hereunder generally or with
respect to any particular transaction, and (E) the ownership, servicing or
management for others of any other mortgage loan or real property not subject to
this Agreement by the Master Servicer or the Special Servicer, as the case may
be, or any Affiliate thereof.
"Servicing Transfer Event" shall mean, with respect to any Serviced
Mortgage Loan, the occurrence of any of the events described in clauses (a)
through (g) of the definition of "Specially Serviced Mortgage Loan".
"Single Certificate" shall mean, for purposes of Section 4.02, a
hypothetical Regular Interest Certificate evidencing an initial $1,000
denomination.
"Single Purpose Entity" shall mean an entity, other than an
individual, whose organizational documents and/or the related loan documents
provide substantially to the effect that: (i) it was formed or organized solely
for the purpose of either owning and operating the Mortgaged Property or
Properties securing one or more Mortgage Loans, or owning and pledging
Defeasance Collateral in connection with the defeasance of a Defeasance Mortgage
Loan, as the case may be, (ii) it may not engage in any business unrelated to
such Mortgaged Property or Properties or such Defeasance Collateral, as the case
may be, (iii) it will not have any assets other than those related to its
interest in and operation of such Mortgaged Property or such Defeasance
Collateral, as the case may be, (iv) it may not incur indebtedness other than
incidental to its ownership and operation of the applicable Mortgaged Property
or Properties or Defeasance Collateral, as the case may be, (v) it will maintain
its own books and records and accounts separate and apart from any other Person,
(vi) it will hold itself out as a legal entity, separate and apart from any
other Person, and (vii) in the case of such an entity whose sole purpose is
owning or operating a Mortgaged Property, it will have an independent director
or, if such entity is a partnership or a limited liability company, at least one
general partner or limited liability company member thereof, as applicable,
which shall itself be a "single purpose entity" (having as its sole asset its
interest in the Single Purpose Entity) with an independent director.
"Special Servicer" shall mean, subject to Section 6.09(d) and Section
7.01(e) (insofar as such sections contemplate multiple parties acting as Special
Servicer), LNR, in its capacity as special servicer hereunder, or any successor
special servicer appointed as herein provided.
"Special Servicer Backup Certification" shall have the meaning
assigned thereto in Section 8.15(i).
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"Special Servicing Fee" shall mean, with respect to each Specially
Serviced Mortgage Loan and each REO Mortgage Loan that relates to an
Administered REO Property, the fee designated as such in, and payable to the
Special Servicer pursuant to, Section 3.11(c).
"Special Servicing Fee Rate" shall mean, with respect to each
Specially Serviced Mortgage Loan and each REO Mortgage Loan that relates to an
Administered REO Property, 0.35% per annum (provided that there shall be a
minimum Special Servicing Fee with respect to each Specially Serviced Mortgage
Loan, each REO Mortgage Loan that relates to an Administered REO Property and
each entire Serviced Loan Combination in the event they constitute Specially
Serviced Mortgage Loans or REO Mortgage Loans, as set forth in Section 3.11(c)).
"Specially Designated Mortgage Loan Documents" shall mean, with
respect to any Trust Mortgage Loan, the following documents collectively:
(i) the original executed Mortgage Note for such Trust Mortgage Loan
(or, alternatively, if the original executed Mortgage Note has
been lost, a lost note affidavit and indemnity with a copy of
such Mortgage Note);
(ii) an original or copy of the Mortgage (with or without recording
information);
(iii) the original or a copy of the policy or certificate of lender's
title insurance issued in connection with such Trust Mortgage
Loan (or, if such policy has not been issued, a "marked-up" pro
forma title policy, or an irrevocable, binding commitment to
issue such title insurance policy);
(iv) an original or copy of any Ground Lease and Ground Lease
estoppels, if any, relating to such Trust Mortgage Loan; and
(v) with respect to Trust Mortgage Loans secured by hospitality
properties only, the related franchise agreement (if any) and
franchisor comfort letter (if any).
provided that whenever the term "Specially Designated Mortgage Loan Documents"
is used to refer to documents actually received by the Trustee or by a Custodian
on its behalf, such term, with respect to any receipt or certification by the
Trustee or a Custodian on its behalf for documents described in clauses (iv) and
(v) of this definition, shall be deemed to include such documents only to the
extent the Trustee or a Custodian on its behalf has actual knowledge of their
existence; and provided, further, that the only Specially Designated Mortgage
Loan Document with respect to each of the Outside Serviced Trust Mortgage Loans
shall be the document described in clause (i) of this definition.
"Specially Designated Servicing Action" means:
(a) with respect to the 000 Xxxx Xxxxxxx Loan Combination or any
related REO Property, the actions specified in clauses (i) through (ix) of
Section 3.02(a) of the related Co-Lender Agreement;
(b) with respect to each other Serviced Loan Combination or any
related REO Property, the actions specified in clauses (i) through (xiv) of
Section 3.02(a) of the related Co-Lender Agreement; and
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(c) with respect to each other Serviced Mortgage Loan and Administered
REO Property, any of the following actions--
(i) any foreclosure upon or comparable conversion (which may
include acquisitions of an Administered REO Property) of the ownership of
properties securing such of the Specially Serviced Mortgage Loans as come
into and continue in default,
(ii) any modification, extension, amendment or waiver of a
monetary term (including the timing of payments, but excluding the waiver
of Default Charges) or any material non-monetary term (including any
material term relating to insurance) of a Specially Serviced Mortgage Loan,
(iii) any proposed sale of an Administered REO Property (other
than in connection with the termination of the Trust Fund) for less than
the Purchase Price,
(iv) any acceptance of a discounted payoff with respect to a
Specially Serviced Mortgage Loan,
(v) any determination to bring a Mortgaged Property securing a
Specially Serviced Mortgage Loan or an Administered REO Property into
compliance with applicable environmental laws or to otherwise address
Hazardous Materials located at a Mortgaged Property securing a Specially
Serviced Mortgage Loan or an Administered REO Property,
(vi) 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,
(vii) any acceptance of substitute or additional collateral for a
Specially Serviced Mortgage Loan, other than in accordance with the terms
of such Mortgage Loan,
(viii) any waiver of a "due-on-sale" or "due-on-encumbrance"
clause with respect to any Serviced Mortgage Loan, and
(ix) any acceptance of an assumption agreement releasing a
Mortgagor from liability under any Serviced Mortgage Loan.
"Specially Serviced Mortgage Loan" shall mean any Serviced Mortgage
Loan as to which any of the following events has occurred:
(a) the related Mortgagor (or any related guarantor) has failed to
make when due any Monthly Payment (including a Balloon Payment), which
failure continues, or which failure the Master Servicer or (with the
consent of the Controlling Class Representative) the Special Servicer
determines, in each case in accordance with the Servicing Standard, will
continue, unremedied (without regard to any grace period) by the related
Mortgagor, any related guarantor or otherwise (including, in the case of a
Serviced Combination Trust Mortgage Loan, by a related Serviced Non-Trust
Mortgage Loan Noteholder exercising any cure rights under the related
Co-Lender Agreement) (i) except in the case of a Balloon Mortgage Loan
delinquent in respect of its Balloon Payment, for 60 days beyond the date
on which the subject payment was due, or (ii) solely in the case of a
delinquent Balloon Payment, (A) for one (1) Business Day
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beyond the date on which the subject Balloon Payment was due (unless clause
(B) below applies) or (B) in the case of a Balloon Mortgage Loan as to
which the related Mortgagor shall have delivered a refinancing commitment
acceptable to the Special Servicer prior to the date on which the subject
Balloon Payment was due, for 30 days beyond the date on which the subject
Balloon Payment was due (or for such shorter period ending on the date on
which it is determined that the refinancing could not reasonably be
expected to occur); or
(b) there shall have occurred a default (other than as described in
clause (a) above and other than an Acceptable Insurance Default) that the
Master Servicer or the Special Servicer has determined, in each case in
accordance with the Servicing Standard, (i) materially impairs the value of
the related Mortgaged Property as security for such Serviced Mortgage Loan
or otherwise materially adversely affects the interests of
Certificateholders (or, in the case of a Serviced Non-Trust Mortgage Loan,
the interests of the related Serviced Non-Trust Mortgage Loan Noteholder)
(it being acknowledged and agreed that any default requiring a Servicing
Advance shall be deemed to materially and adversely affect the interests of
Certificateholders or, in the case of a Serviced Non-Trust Mortgage Loan,
the interests of the related Serviced Non-Trust Mortgage Loan Noteholder),
and (ii) continues unremedied by the related Mortgagor, any related
guarantor or otherwise (including, in the case of a Serviced Combination
Trust Mortgage Loan, by a related Serviced Non-Trust Mortgage Loan
Noteholder exercising any cure rights under the related Co-Lender
Agreement) for either (A) one Business Day (but only if, pursuant to the
related loan documents, the subject default gives rise to immediate
acceleration without application of a cure period under such Serviced
Mortgage Loan) or (B) otherwise, the greater of (1) the applicable grace
period under the terms of such Serviced Mortgage Loan and (2) 30 days; or
(c) the Master Servicer or, with the consent of the Controlling Class
Representative, the Special Servicer shall have determined, in accordance
with the Servicing Standard, that (i) a default in the making of a Monthly
Payment on such Serviced Mortgage Loan, including a Balloon Payment, is
likely to occur and is likely to remain unremedied (without regard to any
grace period) by the related Mortgagor, any related guarantor or otherwise
(including, in the case of a Serviced Combination Trust Mortgage Loan, by a
related Serviced Non-Trust Mortgage Loan Noteholder exercising any cure
rights under the related Co-Lender Agreement) for at least the applicable
period contemplated by clause (a) of this definition or (ii) a default
(other than as described in clause (a) of this definition and other than an
Acceptable Insurance Default) is likely to occur under such Mortgage Loan
that will materially impair the value of the related Mortgaged Property as
security for such Serviced Mortgage Loan or otherwise materially adversely
affect the interests of Certificateholders (or, in the case of a Serviced
Non-Trust Mortgage Loan, the related Serviced Non-Trust Mortgage Loan
Noteholder) and such default is likely to remain unremedied for at least
the applicable period contemplated by clause (b) of this definition; or
(d) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law or
the appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs,
shall have been entered against the related
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Mortgagor and such decree or order shall have remained in force and not
dismissed for a period of 60 days; or
(e) the related Mortgagor shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshaling of assets and liabilities or similar proceedings of or
relating to such Mortgagor or of or relating to all or substantially all of
its property; or
(f) the related Mortgagor shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage
of any applicable insolvency or reorganization statute, make an assignment
for the benefit of its creditors, or voluntarily suspend payment of its
obligations; or
(g) the Master Servicer shall have received notice of the commencement
of foreclosure or similar proceedings with respect to the related Mortgaged
Property;
provided, however, that a Serviced Mortgage Loan will cease to be a Specially
Serviced Mortgage Loan when a Liquidation Event has occurred with respect to
such Serviced Mortgage Loan, when the related Mortgaged Property has become an
REO Property or, so long as at such time no circumstance identified in clauses
(a) through (g) above exists that would cause such Serviced Mortgage Loan to
continue to be characterized as a Specially Serviced Mortgage Loan, when:
(w) with respect to the circumstances described in clause (a) of this
definition, the related Mortgagor has made three consecutive full
and timely Monthly Payments under the terms of such Mortgage Loan
(as such terms may be changed or modified in connection with a
bankruptcy or similar proceeding involving the related Mortgagor
or by reason of a modification, extension, waiver or amendment
granted or agreed to by the Master Servicer or the Special
Servicer pursuant to Section 3.20);
(x) with respect to the circumstances described in clause (b) of this
definition, the default is cured in the good faith, reasonable
judgment of the Special Servicer;
(y) with respect to the circumstances described in clauses (c), (d),
(e) and (f) of this definition, such circumstances cease to exist
in the good faith, reasonable judgment of the Special Servicer,
but, with respect to any bankruptcy or insolvency proceedings
described in clauses (d), (e) and (f), no later than the entry of
an order or decree dismissing such proceeding;
(z) with respect to the circumstances described in clause (g) of this
definition, such proceedings are terminated.
The Special Servicer may conclusively rely on the Master Servicer's
determination as to whether a Servicing Transfer Event has occurred giving rise
to a Serviced Mortgage Loan's becoming a Specially Serviced Mortgage Loan. If
any Mortgage Loan that is part of a Serviced Loan Combination becomes a
Specially Serviced Mortgage Loan, then the other Mortgage Loan or each of the
other Mortgage Loans, as the case may be, in such Loan Combination shall also
become a Specially Serviced Mortgage Loan; provided that if, subject to the
terms, conditions and limitations of the related Co-
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Lender Agreement, a Serviced Non-Trust Mortgage Loan Noteholder prevents the
occurrence of a Servicing Transfer Event with respect to the related Serviced
Combination Trust Mortgage Loan through the exercise of any cure rights granted
under the related Co-Lender Agreement with respect to such Serviced Combination
Trust Mortgage Loan, then the existence of such Servicing Transfer Event with
respect to the related Serviced Non-Trust Mortgage Loan (because any such cure
rights do not include the cure of defaults under the related Serviced Non-Trust
Mortgage Loan) will not, in and of itself, result in any Mortgage Loan that is
part of the subject Serviced Loan Combination becoming a Specially Serviced
Mortgage Loan (provided that a separate Servicing Transfer Event may occur with
respect thereto).
None of the Mortgage Loans comprising an Outside Serviced Loan
Combination shall constitute a Specially Serviced Mortgage Loan hereunder.
"Specially Serviced Trust Mortgage Loan" shall mean any Trust Mortgage
Loan that is a Specially Serviced Mortgage Loan.
"Startup Day" shall mean, with respect to each REMIC Pool, the day
designated as such in Section 10.01(c).
"Stated Maturity Date" shall mean, with respect to any Mortgage Loan,
the Due Date specified in the related Mortgage Note (as in effect on the Closing
Date) on which the last payment of principal is due and payable under the terms
of such Mortgage Note (as in effect on the Closing Date), without regard to any
change in or modification of such terms in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, extension,
waiver or amendment of such Mortgage Loan granted or agreed to by the Special
Servicer (or the Master Servicer, if applicable) pursuant to Section 3.20 (or,
in the case of an Outside Serviced Trust Mortgage Loan, by the applicable
Outside Servicer pursuant to the related Outside Servicing Agreement) and, in
the case of an ARD Mortgage Loan, without regard to its Anticipated Repayment
Date.
"Stated Principal Balance" shall mean: (a) with respect to any Trust
Mortgage Loan (and any successor REO Trust Mortgage Loan with respect thereto),
the Cut-off Date Balance of such Trust Mortgage Loan, as permanently reduced on
each Distribution Date (to not less than zero) by (i) that portion, if any, of
the Principal Distribution Amount for such Distribution Date allocable to such
Trust Mortgage Loan (or any such successor REO Trust Mortgage Loan with respect
thereto), without giving effect to any adjustments pursuant to Section 1.03 in
connection with the calculation of the Adjusted Principal Distribution Amount,
and (ii) the principal portion of any Realized Loss incurred in respect of such
Trust Mortgage Loan (or any such successor REO Trust Mortgage Loan with respect
thereto) during the applicable related Collection Period (or, in the case of a
forgiveness of principal, a Permitted Purchase under the related Outside
Servicing Agreement and/or the related Co-Lender Agreement for less than the
related Purchase Price or a Final Recovery Determination with respect to an
Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan
with respect thereto, during the related Underlying Collection Period) (provided
that, if some or all of the principal portion of such Realized Loss constitutes
an Advance that previously reduced the Stated Principal Balance of such Trust
Mortgage Loan by operation of clause (i) above, then the amount of that Advance
included in the principal portion of such Realized Loss shall not further reduce
the Stated Principal Balance of such Trust Mortgage Loan under this clause
(ii)); and (b) with respect to any Serviced Non-Trust Mortgage Loan (and any
successor REO Mortgage Loan with respect thereto), the Cut-off Date Balance of
such
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Non-Trust Mortgage Loan, as permanently reduced on each related Master Servicer
Remittance Date (to not less than zero) by (i) any principal amounts in respect
of such Non-Trust Mortgage Loan (or any such successor REO Mortgage Loan with
respect thereto) distributed to the related Non-Trust Mortgage Loan Noteholder
on such Master Servicer Remittance Date, and (ii) the principal portion of any
Realized Loss incurred in respect of such Non-Trust Mortgage Loan (or any such
successor REO Mortgage Loan with respect thereto) in connection with a
Liquidation Event or the forgiveness of principal during the related Collection
Period. Notwithstanding the foregoing, if a Liquidation Event occurs in respect
of any Mortgage Loan or any related REO Property, then the "Stated Principal
Balance" of such Mortgage Loan or of any successor REO Mortgage Loan with
respect thereto, as the case may be, shall be zero commencing as of the first
Distribution Date (or, in the case of a Serviced Non-Trust Mortgage Loan or any
successor REO Mortgage Loan with respect thereto, the first related Master
Servicer Remittance Date) following the end of the applicable Collection Period
in which such Liquidation Event occurred; provided that, in the case of an
Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan
with respect thereto, if the subject Liquidation Event is a Final Recovery
Determination made by the applicable Outside Servicer with respect to, or a
Permitted Purchase under the related Outside Servicing Agreement and/or the
related Co-Lender Agreement of, such Trust Mortgage Loan or REO Trust Mortgage
Loan, as the case may be, then references to "Collection Period" in this
sentence shall be deemed to mean the related Underlying Collection Period.
"Subordinate Certificate" shall mean any 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 P, Class Q, Class S or Class T Certificate or any
Residual Interest Certificate.
"Subordinate Non-Trust Mortgage Loans" shall mean, collectively, the
Serviced Note B Non-Trust Mortgage Loans, the junior component of the 000 Xxxx
Xxxxxx Note A-1 Non-Trust Mortgage Loan, the junior component of the Courtyard
by Marriott Note A-1 Non-Trust Mortgage Loan, the Courtyard by Marriott Note B
Non-Trust Mortgage Loan, the junior component of the 1345 Avenue of the Americas
Note 2 Non-Trust Mortgage Loan, the 1345 Avenue of the Americas Note 1-B/C
Non-Trust Mortgage Loans, the junior component of the Park Avenue Plaza Note 2
Non-Trust Mortgage Loan and the Park Avenue Plaza Note 1-B Non-Trust Mortgage
Loans.
"Subordinate Non-Trust Mortgage Loan Noteholder" shall mean the holder
of the Mortgage Note for a Subordinate Non-Trust Mortgage Loan.
"Sub-Servicer" shall mean any Person with which the Master Servicer or
the Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement" shall mean the written contract between the
Master Servicer or the Special Servicer, on the one hand, and any Sub-Servicer,
on the other hand, relating to servicing and administration of Serviced Mortgage
Loans as provided in Section 3.22.
"Subsequent Exchange Act Reports" shall have the meaning assigned
thereto in Section 8.15(a).
"Successful Bidder" shall have the meaning assigned thereto in Section
7.01(c).
"Supplemental Report" shall mean have the meaning assigned thereto in
Section 3.12(c).
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"Tax Administrator" shall mean any tax administrator appointed
pursuant to Section 8.13 (or, in the absence of any such appointment, the
Trustee).
"Tax Matters Person" shall mean, with respect to any REMIC Pool, the
Person designated as the "tax matters person" of such REMIC Pool in the manner
provided under Treasury regulations section 1.860F-4(d) and Treasury regulations
section 301.6231(a)(7)-1, which Person shall be the Plurality Residual Interest
Certificateholder in respect of the related Class of Residual Interest
Certificates.
"Tax Returns" shall mean the federal income tax return on Internal
Revenue Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income
Tax Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each REMIC Pool due to its classification as a REMIC
under the REMIC Provisions, and the federal income tax return to be filed on
behalf of the Grantor Trust (if created hereunder taking into account Section
2.05(b)) due to its classification as a grantor trust under the Grantor Trust
Provisions, together with any and all other information, reports or returns that
may be required to be furnished to the Certificateholders or filed with the IRS
under any applicable provisions of federal tax law or any other governmental
taxing authority under applicable state and local tax law.
"Total Principal Reinstatement Amount" shall mean, with respect to any
Distribution Date, an amount (to be calculated by the Trustee immediately
following, and after taking into account, all distributions to be made with
respect to the Certificates on such Distribution Date) equal to the lesser of:
(1) the amount, if any, by which (a) the aggregate Stated Principal Balance of
the Mortgage Pool that will be outstanding immediately following the subject
Distribution Date, exceeds (b) the aggregate of the Class Principal Balances of
all the Classes of Principal Balance Certificates (after taking into account the
distributions made with respect to the Certificates on the subject Distribution
Date, but prior to any adjustments to the Class Principal Balances of the
respective Classes of Principal Balance Certificates pursuant to Section 4.04 or
Section 4.05); and (2) the amount, if any, by which (a) the aggregate Loss
Reimbursement Amount in respect of all the Classes of Principal Balance
Certificates for the subject Distribution Date, exceeds (b) the total portion of
such aggregate Loss Reimbursement Amount reimbursed in respect of all of the
Classes of Principal Balance Certificates for the subject Distribution Date, if
any, pursuant to Section 4.01(a) and/or Section 4.01(b).
"Transfer" shall mean any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit and Agreement" shall have the meaning assigned
thereto in Section 5.02(d)(i)(B).
"Transferee" shall mean any Person who is acquiring, by Transfer, any
Ownership Interest in a Certificate.
"Transferor" shall mean any Person who is disposing of, by Transfer,
any Ownership Interest in a Certificate.
"Trust" shall mean the common law trust created hereunder.
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"Trust Collection Period" shall mean, with respect to any Distribution
Date or Trust Master Servicer Remittance Date, the period commencing on the day
immediately following the Trust Determination Date in the calendar month
preceding the month in which such Distribution Date or Trust Master Servicer
Remittance Date, as the case may be, occurs (or, in the case of each of the
initial Distribution Date and the initial Trust Master Servicer Remittance Date,
commencing immediately following the Cut-off Date) and ending on and including
the Trust Determination Date in the calendar month in which such Distribution
Date or Trust Master Servicer Remittance Date, as the case may be, occurs.
"Trust Determination Date" shall mean the 11th calendar day of each
month (or, if such 11th day is not a Business Day, the Business Day immediately
following), commencing in September 2005.
"Trust Fund" shall mean, collectively, all of the assets of the REMIC
Pools, the Grantor Trust (if created hereunder taking into account Section
2.05(b)) and the Loss of Value Reserve Fund.
"Trust Master Servicer Remittance Date" shall mean the date each
month, commencing in September 2005, on which, among other things, the Master
Servicer is required to (i) make P&I Advances and (ii) transfer the Master
Servicer Remittance Amount and any Excess Liquidation Proceeds to the Trustee,
which date shall be the Business Day immediately preceding the Distribution Date
in such month.
"Trust Mortgage Loan" shall mean each of the mortgage loans listed on
the Trust Mortgage Loan Schedule and from time to time held in the Trust Fund.
As used herein, the term "Trust Mortgage Loan" includes the related Mortgage
Note, Mortgage and other security documents contained in the related Mortgage
File or otherwise held on behalf of the Trust. Notwithstanding the foregoing, if
any of the mortgage loans listed on the Trust Mortgage Loan Schedule are, in
accordance with their terms or pursuant to any modification, waiver or amendment
agreed to in accordance with Section 3.20, severed or split into two or more
mortgage loans that are to remain part of the Trust Fund, then such two or more
mortgage loans shall constitute separate "Trust Mortgage Loans" for all purposes
hereof, except that such mortgage loans will collectively constitute the "Trust
Mortgage Loan" that relates to the applicable REMIC I Regular Interest and/or
any applicable Loan REMIC Regular Interest.
"Trust Mortgage Loan Schedule" shall mean the list of Trust Mortgage
Loans transferred on the Closing Date to the Trustee as part of the Trust Fund,
attached hereto as Schedule I (and also delivered to the Trustee and the Master
Servicer in a computer readable format). Such list shall set forth the following
information with respect to each Trust Mortgage Loan:
(i) the Mortgage Loan number;
(ii) the street address (including city, state and zip code) and name
of the related Mortgaged Property;
(iii) the Cut-off Date Balance;
(iv) the amount of the Monthly Payment due on the first Due Date
following the Closing Date;
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(v) the original Mortgage Rate;
(vi) the (A) remaining term to stated maturity and (B) Stated Maturity
Date;
(vii) in the case of a Balloon Trust Mortgage Loan, the remaining
amortization term;
(viii) the Interest Accrual Basis;
(ix) the (A) Administrative Cost Rate and (B) primary servicing fee
rate;
(x) whether such Trust Mortgage Loan is secured by a Ground Lease;
(xi) the related Mortgage Loan Seller;
(xii) whether such Trust Mortgage Loan is a Defeasance Mortgage Loan;
(xiii) whether such Trust Mortgage Loan is an ARD Mortgage Loan and,
if so, the Anticipated Repayment Date and Additional Interest
Rate;
(xiv) whether such Trust Mortgage Loan is a Cross-Collateralized
Mortgage Loan and the Cross-Collateralized Group to which it
belongs; and
(xv) the applicable Loan Group to which such Mortgage Loan belongs.
"Trustee" shall mean LaSalle, in its capacity as trustee hereunder, or
any successor trustee appointed as herein provided.
"Trustee Account" shall have the meaning assigned thereto in Section
3.06(a).
"Trustee Backup Certification" shall have the meaning assigned thereto
in Section 8.15(g).
"Trustee Fee" shall mean, with respect to each Distribution Date, an
amount equal to one-twelfth of the product of (i) the annual Trustee Fee Rate,
multiplied by (ii) the aggregate Stated Principal Balance of the Mortgage Pool
outstanding immediately prior to such Distribution Date.
"Trustee Fee Rate" shall mean 0.00075% per annum.
"Trustee Liability" shall have the meaning assigned thereto in Section
8.05(b).
"UBS/Depositor Mortgage Loan Purchase Agreement" shall mean that
certain Mortgage Loan Purchase Agreement dated as of August 15, 2005, between
the UBS Mortgage Loan Seller, UBS Principal Finance LLC and the Depositor.
"UBS Mortgage Loan Seller" shall mean UBS Real Estate Investments Inc.
or its successor in interest.
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"UBS Trust Mortgage Loan" shall mean any Trust Mortgage Loan
transferred by the UBS Mortgage Loan Seller to the Depositor, pursuant to the
UBS/Depositor Mortgage Loan Purchase Agreement.
"UCC" shall mean the Uniform Commercial Code in effect in the
applicable jurisdiction.
"UCC Financing Statement" shall mean a financing statement executed
(if required by the UCC) and filed pursuant to the UCC.
"Uncertificated Accrued Interest" shall mean the interest accrued from
time to time with respect to any Loan REMIC Regular Interest, REMIC I Regular
Interest or REMIC II Regular Interest, the amount of which interest shall equal:
(a) in the case of any Loan REMIC Regular Interest for any Interest Accrual
Period, one-twelfth of the product of (i) the annual Loan REMIC Remittance Rate
applicable to such Loan REMIC Regular Interest for such Interest Accrual Period,
multiplied by (ii) the Uncertificated Principal Balance of such Loan REMIC
Regular Interest outstanding immediately prior to the related Distribution Date;
(b) in the case of any REMIC I Regular Interest for any Interest Accrual Period,
one-twelfth of the product of (i) the annual REMIC I Remittance Rate applicable
to such REMIC I Regular Interest for such Interest Accrual Period, multiplied by
(ii) the Uncertificated Principal Balance of such REMIC I Regular Interest
outstanding immediately prior to the related Distribution Date; and (c) in the
case of any REMIC II Regular Interest for any Interest Accrual Period,
one-twelfth of the product of (i) the annual REMIC II Remittance Rate applicable
to such REMIC II Regular Interest for such Interest Accrual Period, multiplied
by (ii) the Uncertificated Principal Balance of such REMIC II Regular Interest
outstanding immediately prior to the related Distribution Date. Each Loan REMIC
Regular Interest (if any), REMIC I Regular Interest and REMIC II Regular
Interest shall accrue interest on a 30/360 Basis.
"Uncertificated Distributable Interest" shall mean: (a) with respect
to any Loan REMIC Regular Interest for any Distribution Date, an amount of
interest equal to the amount of Uncertificated Accrued Interest in respect of
the subject Loan REMIC Regular Interest for the related Interest Accrual Period,
reduced (to not less than zero) by any portion of any Net Aggregate Prepayment
Interest Shortfall for such Distribution Date allocable to the corresponding
Early Defeasance Trust Mortgage Loan; (b) with respect to any REMIC I Regular
Interest for any Distribution Date, an amount of interest equal to the amount of
Uncertificated Accrued Interest in respect of the subject REMIC I Regular
Interest for the related Interest Accrual Period, reduced (to not less than
zero) by the product of (i) any Net Aggregate Prepayment Interest Shortfall for
such Distribution Date, multiplied by (ii) a fraction, the numerator of which is
the amount of Uncertificated Accrued Interest in respect of the subject REMIC I
Regular Interest for the related Interest Accrual Period, and the denominator of
which is the aggregate amount of Uncertificated Accrued Interest in respect of
all the REMIC I Regular Interests for the related Interest Accrual Period; and
(c) with respect to any REMIC II Regular Interest for any Distribution Date,
subject to Section 4.05(d), an amount of interest equal to the amount of
Uncertificated Accrued Interest in respect of the subject REMIC II Regular
Interest for the related Interest Accrual Period, reduced (to not less than
zero) by the product of (i) any Net Aggregate Prepayment Interest Shortfall for
such Distribution Date, multiplied by (ii) a fraction, the numerator of which is
the amount of Uncertificated Accrued Interest in respect of the subject REMIC II
Regular Interest for the related Interest Accrual Period, and the denominator of
which is the aggregate amount of Uncertificated Accrued Interest in respect of
all the REMIC II Regular Interests for the related Interest Accrual Period.
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"Uncertificated Principal Balance" shall mean the principal balance of
any Loan REMIC Regular Interest, REMIC I Regular Interest or REMIC II Regular
Interest outstanding as of any date of determination. As of the Closing Date,
the Uncertificated Principal Balance of each Loan REMIC Regular Interest (if
any) and each REMIC I Regular Interest shall equal the Cut-off Date Balance of
the corresponding Trust Mortgage Loan. In addition, as of the Closing Date, the
Uncertificated Principal Balance of each REMIC II Regular Interest shall equal
the amount set forth in the Preliminary Statement hereto as its initial
Uncertificated Principal Balance. On each Distribution Date, the Uncertificated
Principal Balance of each REMIC II Regular Interest shall be reduced by all
distributions of principal deemed to have been made thereon on such Distribution
Date pursuant to Section 4.01(l), and shall be further reduced (subject to
Section 4.05) on such Distribution Date by all Realized Losses and Additional
Trust Fund Expenses deemed to have been allocated thereto on such Distribution
Date pursuant to Section 4.04(b). On each Distribution Date, the Uncertificated
Principal Balance of each REMIC I Regular Interest shall be reduced by all
distributions of principal deemed to have been made in respect of such REMIC I
Regular Interest on such Distribution Date pursuant to Section 4.01(m), and
shall be further reduced on such Distribution Date by all Realized Losses and
Additional Trust Fund Expenses deemed to have been allocated thereto on such
Distribution Date pursuant to Section 4.04(c). On each Distribution Date, the
Uncertificated Principal Balance of each Loan REMIC Regular Interest (if any)
shall be reduced by all distributions of principal deemed to have been made in
respect of such Loan REMIC Regular Interest on such Distribution Date pursuant
to Section 4.01(n), and shall be further reduced on such Distribution Date by
all Realized Losses and Additional Trust Fund Expenses deemed to have been
allocated thereto on such Distribution Date pursuant to Section 4.04(d).
Notwithstanding the foregoing, on any given Distribution Date, the
Uncertificated Principal Balance of any REMIC II Regular Interest shall be
subject to increase (and, when appropriate, shall be increased), as and to the
extent provided in Section 4.05(c).
"Underlying Collection Period" shall mean the 000 Xxxx Xxxxxx
Underlying Collection Period, the Courtyard by Marriott Underlying Collection
Period, the 1345 Avenue of the Americas Underlying Collection Period or the Park
Avenue Plaza Underlying Collection Period, as applicable.
"Underwriters" shall mean Xxxxxx Brothers Inc. and UBS Securities LLC
and their respective successors in interest.
"United States Tax Person" shall mean a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in, or under the laws of, the United States or any state or the District of
Columbia, or an estate whose income from sources without the United States is
includible in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States, or a trust if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more United States persons have the authority to control all substantial
decisions of the trust (or to the extent provided in the Treasury regulations,
if the trust was in existence on August 20, 1996 and elected to be treated as a
United States person), all within the meaning of Section 7701(a) (30) of the
Code.
"United States Securities Person" shall mean any "U.S. person" as
defined in Rule 902(k) of Regulation S.
"Voting Rights" shall mean the portion of the voting rights of all of
the Certificates which is allocated to any Certificate. At all times during the
term of this Agreement, 99% of the Voting
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Rights shall be allocated among the Holders of the various Classes of the
Principal Balance Certificates in proportion to the respective Class Principal
Balances of their Certificates, and 1% of the Voting Rights shall be allocated
among the Holders of the various Classes of the Interest-Only Certificates in
proportion to the respective Class Notional Amounts of their Certificates.
Voting Rights allocated to a Class of Certificateholders shall be allocated
among such Certificateholders in standard proportion to the Percentage Interests
evidenced by their respective Certificates. No Voting Rights shall be allocated
to the Certificates that are not Regular Interest Certificates.
"Wachovia" means Wachovia Bank, National Association or its successor
in interest.
"Weighted Average REMIC I Remittance Rate" shall mean, with respect to
any Interest Accrual Period, the rate per annum equal to the weighted average,
expressed as a percentage and rounded to six decimal places, of the respective
REMIC I Remittance Rates in effect for the REMIC I Regular Interests for such
Interest Accrual Period, weighted on the basis of the respective Uncertificated
Principal Balances of such REMIC I Regular Interests outstanding immediately
prior to the related Distribution Date.
"Xxxxx Fargo" means Xxxxx Fargo Bank, National Association or its
successor in interest.
"Workout Fee" shall mean the fee designated as such in, and payable to
the Special Servicer with respect to certain collections on each Corrected
Mortgage Loan pursuant to, Section 3.11(c).
"Workout Fee Rate" shall mean, with respect to each Corrected Mortgage
Loan as to which a Workout Fee is payable, 1.0%.
"Yield Maintenance Charge" shall mean the amount paid or payable, as
the context requires, as the result of a Principal Prepayment on, or other early
collection of principal of, a Mortgage Loan, which amount is not otherwise due
thereon in respect of principal or interest and has been calculated (based on
scheduled payments of interest and/or principal on such Mortgage Loan) to
compensate the holder for reinvestment losses based on the value of an interest
rate index at or near the time of prepayment. Any other prepayment premiums,
penalties and fees not so calculated will not be considered "Yield Maintenance
Charges". In addition, any Excess Defeasance Deposit Proceeds will not be
considered "Yield Maintenance Charges". In the event that a Yield Maintenance
Charge shall become due for any particular Serviced Mortgage Loan, the Master
Servicer shall be required to follow the terms and provisions contained in the
applicable Mortgage Note, provided, however, that, in the event the particular
Mortgage Note shall not specify the U.S. Treasuries which shall be used in
determining the discount rate or the reinvestment yield to be applied in such
calculation, the Master Servicer shall be required to use those U.S. Treasuries
which shall generate the lowest discount rate or reinvestment yield for the
purposes thereof. Accordingly, if either no U.S. Treasury issue, or more than
one U.S. Treasury issue, shall coincide with the term over which the Yield
Maintenance Charge shall be calculated (which depending on the applicable
Mortgage Note is based on the remaining average life of the subject Serviced
Mortgage Loan or the actual term remaining through the related Stated Maturity
Date or Anticipated Repayment Date, as applicable), the Master Servicer shall
use the applicable U.S. Treasury whose reinvestment yield is the lowest, with
such yield being based on the bid price for such issue as published in The Wall
Street Journal on the date that is 14 days prior to the date that the Yield
Maintenance Charge shall become due and payable (or, if such bid price is not
published on that date, the next preceding date on which such bid price is so
published) and converted to a monthly
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compounded nominal yield. The monthly compounded nominal yield ("MEY") is
derived from the reinvestment yield or discount rate and shall be defined as MEY
= (12 X [{(1+ "BEY"/2) ^1/6}-1]) X 100, where BEY is defined as the U.S.
Treasury Reinvestment Yield which is in decimal form and not in percentage, and
1/6 is the exponential power to which a portion of the equation is raised. For
example, using a BEY of 5.50%, the MEY = (12 X [{(1+ .055/2) ^ 0.16667}- 1]) X
100 where .055 is the decimal version of the percentage 5.5% and 0.16667 is the
decimal version of the exponential power. The MEY in the above calculation is
5.44%.
"Yield Maintenance Treasury Rate" shall mean, for purposes of
calculating a Discount Rate, the yield calculated by the Master Servicer by
linear interpolation of the yields, as such yields are reported in Federal
Reserve Statistical Release H.15-Selected Interest Rates (519), under the
heading U.S. Government Securities/Treasury Constant Maturities, with respect to
the maturity dates set forth thereunder, one longer and one shorter, most nearly
approximating the maturity date (or, in the case of an ARD Trust Mortgage Loan
or any successor REO Trust Mortgage Loan with respect thereto, the Anticipated
Repayment Date) of the relevant prepaid Trust Mortgage Loan or REO Trust
Mortgage Loan. If Federal Reserve Statistical Release H.15 is no longer
published or does not indicate the information set forth above, then the Master
Servicer shall select a comparable publication or source for the purposes of
determining the Yield Maintenance Treasury Rate.
"YM Principal Balance Certificates" shall mean, collectively, the
Class A-1, Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-1A, Class A-M,
Class A-J, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class
J and Class K Certificates.
SECTION 1.02. General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires:
(i) the terms defined in this Agreement include the plural as
well as the singular, and the use of any gender herein shall be deemed to
include the other gender;
(ii) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(iii) references herein to "Articles", "Sections", "Subsections",
"Paragraphs" and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other
subdivisions of this Agreement;
(iv) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section
in which the reference appears, and this rule shall also apply to
Paragraphs and other subdivisions;
(v) the words "herein", "hereof", "hereunder", "hereto", "hereby"
and other words of similar import refer to this Agreement as a whole and
not to any particular provision;
(vi) the terms "include" or "including" shall mean without
limitation by reason of enumeration; and
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(vii) references to "Current Report on Form 8-K" and "Annual
Report on Form 10-K" shall be deemed to include any successor or equivalent
forms adopted by the Commission.
SECTION 1.03. Certain Adjustments to the Principal Distributions on
the Certificates.
(a) If any party hereto is reimbursed out of general collections on
the Mortgage Pool on deposit in the Pool Custodial Account for any unreimbursed
Advance that has been or is determined to be a Nonrecoverable Advance (together
with interest accrued and payable thereon pursuant to Section 3.11(g) or Section
4.03(d), as applicable, to the extent such interest was paid hereunder from a
source other than related Default Charges or Loss of Value Payments), then (for
purposes of calculating distributions on the Certificates) each such
reimbursement and payment of interest shall be deemed to have been made:
first, out of any amounts then on deposit in the Pool Custodial
Account that represent payments or other collections of principal Received
by the Trust with respect to the Loan Group that includes the Trust
Mortgage Loan or REO Trust Mortgage Loan in respect of which such
Nonrecoverable Advance was made, and which amounts, but for their
application to reimburse such Nonrecoverable Advance (and/or to pay
interest thereon), would be included in the Available Distribution Amount
for the related Distribution Date;
second, out of any amounts then on deposit in the Pool Custodial
Account that represent payments or other collections of principal Received
by the Trust with respect to the Loan Group that does not include the Trust
Mortgage Loan or REO Trust Mortgage Loan in respect of which such
Nonrecoverable Advance was made, and which amounts, but for their
application to reimburse such Nonrecoverable Advance (and/or to pay
interest thereon), would be included in the Available Distribution Amount
for the related Distribution Date;
third, out of any amounts then on deposit in the Pool Custodial
Account that represent any other payments and/or collections Received by
the Trust with respect to the Loan Group that includes the Trust Mortgage
Loan or REO Trust Mortgage Loan in respect of which such Nonrecoverable
Advance was made, and which amounts, but for their application to reimburse
such Nonrecoverable Advance (and/or to pay interest thereon), would be
included in the Available Distribution Amount for the related Distribution
Date;
fourth, out of any amounts then on deposit in the Pool Custodial
Account that represent any other payments and/or collections Received by
the Trust with respect to the Loan Group that does not include the Trust
Mortgage Loan or REO Trust Mortgage Loan in respect of which such
Nonrecoverable Advance was made, and which amounts, but for their
application to reimburse such Nonrecoverable Advance (and/or to pay
interest thereon), would be included in the Available Distribution Amount
for the related Distribution Date; and
fifth, out of any other amounts then on deposit in the Pool
Custodial Account that may be available to reimburse the subject
Nonrecoverable Advance and/or to pay interest thereon.
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(b) If and to the extent that any payment or other collection of
principal of any Trust Mortgage Loan or REO Trust Mortgage Loan is deemed to be
applied in accordance with clause first of Section 1.03(a) to reimburse a
Nonrecoverable Advance or to pay interest thereon, and further if and to the
extent that such payment or other collection of principal constitutes part of
the Principal Distribution Amount for any Distribution Date, then: (i) the
Adjusted Principal Distribution Amount for such Distribution Date shall exclude
such payment or other collection of principal; and (ii) in accordance with
clause (c) of the definition of "Adjusted Principal Distribution Amount", in
order to calculate the Adjusted Principal Distribution Amount for such
Distribution Date, the amount of such payment or other collection of principal
shall be subtracted from the Principal Distribution Amount for such Distribution
Date. In addition, for purposes of determining the respective portions of the
Adjusted Principal Distribution Amount for any Distribution Date that are
attributable to the two Loan Groups, the Trustee shall take into account whether
any payment or other collection of principal excluded from such Adjusted
Principal Distribution Amount in accordance with the preceding sentence relates
to a Trust Mortgage Loan or REO Trust Mortgage Loan, as the case may be, in Loan
Group No. 1 or Loan Group No. 2.
(c) If and to the extent that (1) any Advance is determined to be a
Nonrecoverable Advance, (2) such Advance is reimbursed or interest thereon is
paid out of general principal collections on the Mortgage Pool as contemplated
by Section 1.03(a) above and (3) the particular item for which such Advance was
originally made or such interest on such Advance, as the case may be, is
subsequently Received by the Trust (in whole or in part) out of payments or
other collections in respect of the related Trust Mortgage Loan or REO Trust
Mortgage Loan (such item or such interest on such Advance, as the case may be,
if and to the extent so collected, a "Recovered Amount"), then: (i) without
duplication of any amounts already included therein, the Adjusted Principal
Distribution Amount for the Distribution Date that corresponds to the related
Collection Period in which such item or such interest on such Advance, as the
case may be, was Received by the Trust shall include such Recovered Amount; (ii)
in accordance with clause (b) of the definition of "Adjusted Principal
Distribution Amount", in order to calculate the Adjusted Principal Distribution
Amount for the Distribution Date that corresponds to the related Collection
Period in which such item was Received by the Trust, such Recovered Amount (to
the extent not already included therein) shall be added to the Principal
Distribution Amount for such Distribution Date; and (iii) such Advance or such
interest thereon, as the case may be, to the extent of such Recovered Amount,
will no longer be considered to have been reimbursed or paid, as the case may
be, out of general principal collections on the Mortgage Pool. In addition, if
and to the extent that any Advance is determined to be a Nonrecoverable Advance,
interest on such Advance is paid out of general principal collections on the
Mortgage Pool as contemplated by Section 1.03(a) above and such interest on such
Advance is subsequently reimbursed to the Trust out of Default Charges or Loss
of Value Payments collected on the Trust Mortgage Loan or REO Trust Mortgage
Loan as to which such Advance was made, then: (i) the Adjusted Principal
Distribution Amount for the Distribution Date that corresponds to the related
Collection Period in which such Default Charges were Received by the Trust or
such Loss of Value Payments were so applied shall include the portion of such
Default Charges or Loss of Value Payments that was applied to reimburse the
Trust for such interest on such Advance; (ii) in accordance with clause (b) of
the definition of "Adjusted Principal Distribution Amount", in order to
calculate the Adjusted Principal Distribution Amount for the Distribution Date
that corresponds to the related Collection Period in which such Default Charges
were Received by the Trust or such Loss of Value Payments were so applied, an
amount equal to the portion of such Default Charges or Loss of Value Payments
that was applied to reimburse the Trust for such interest on such Advance shall
be added to the Principal Distribution Amount for such Distribution Date; and
(iii) such interest on such
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Advance, to the extent of such Recovered Amount, will no longer be considered to
have been paid out of general principal collections on the Mortgage Pool. In
addition, for purposes of determining the respective portions of the Adjusted
Principal Distribution Amount for any Distribution Date that are attributable to
the two Loan Groups, the Trustee shall take into account whether any Recovered
Amount included in such Adjusted Principal Distribution Amount in accordance
with the foregoing sentences of this Section 1.03(c) relates to a Trust Mortgage
Loan or REO Trust Mortgage Loan, as the case may be, in Loan Group No. 1 or Loan
Group No. 2; provided that, if the Nonrecoverable Advance or interest thereon to
which such Recovered Amount corresponds was deemed reimbursed or paid, as the
case may be, out of payments and other collections of principal attributable to
both Loan Groups, then such Recovered Amount shall be deemed allocated to the
two Loan Groups, in each case up to the amount of payments and other collections
of principal attributable thereto that were deemed applied to reimburse or pay,
as the case may be, such Nonrecoverable Advance or interest thereon, in the
reverse order contemplated by Section 1.03(a).
(d) Nothing contained in this Section 1.03 is intended to limit the
ability of any party hereto that is entitled to reimbursement hereunder for any
unreimbursed Advances that have been or are determined to be Nonrecoverable
Advances (together with interest accrued and payable thereon pursuant to Section
3.11(g) or Section 4.03(d)) to collections of principal Received by the Trust
with respect to the Mortgage Pool; instead the order of priority set forth in
Section 1.03(a) is a deemed allocation only for purposes of calculating
distributions on the Certificates.
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ARTICLE II
CONVEYANCE OF TRUST MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Creation of Trust; Conveyance of Trust Mortgage Loans.
(a) It is the intention of the parties hereto that a common law trust
be established pursuant to this Agreement and that such trust be designated as
"LB-UBS Commercial Mortgage Trust 2005-C5". LaSalle is hereby appointed, and
does hereby agree, to act as Trustee hereunder and, in such capacity, to hold
the Trust Fund in trust for the exclusive use and benefit of all present and
future Certificateholders.
The Depositor, concurrently with the execution and delivery hereof,
does hereby assign, sell, transfer, set over and otherwise convey to the Trustee
in trust, without recourse, for the benefit of the Certificateholders, all the
right, title and interest of the Depositor in, to and under (i) the Trust
Mortgage Loans, (ii) the UBS/Depositor Mortgage Loan Purchase Agreement, (iii)
the respective Co-Lender Agreements; and (iv) all other assets included or to be
included in the Trust Fund. Such assignment includes all interest and principal
received or receivable on or with respect to the Trust Mortgage Loans and due
after the Cut-off Date and, in the case of each Trust Mortgage Loan that is part
of a Loan Combination, is subject to the provisions of the related Co-Lender
Agreement. With respect to each Trust Mortgage Loan that is part of a Loan
Combination, the Trustee, on behalf of the Trust, assumes the obligations of the
holder of such Trust Mortgage Loan and the related Mortgage Note under, and
agrees to be bound by, the related Co-Lender Agreement.
The parties hereto acknowledge and agree that, notwithstanding Section
11.07, the transfer of the Trust Mortgage Loans and the related rights and
property accomplished hereby is absolute and is intended by them to constitute a
sale.
(b) In connection with the Depositor's assignment pursuant to Section
2.01(a) above, the Depositor shall, in the case of each Xxxxxx Trust Mortgage
Loan, deliver to and deposit with, and the UBS Mortgage Loan Seller has
(pursuant to the UBS/Depositor Mortgage Loan Purchase Agreement) agreed, in the
case of each UBS Trust Mortgage Loan, to deliver to and deposit with, on or
before the Closing Date: (i) the Trustee or a Custodian appointed thereby, the
Mortgage File for such Trust Mortgage Loan, with copies of each Mortgage File to
be delivered by the Trustee to, upon request, the Master Servicer (and at the
expense of the Trustee and not at the expense of the Trust Fund), within 10
Business Days of such request; and (ii) the Master Servicer (or, at the
direction of the Master Servicer, to the appropriate Sub-Servicer), all
unapplied Escrow Payments and Reserve Funds in the possession or under the
control of the Depositor or the UBS Mortgage Loan Seller, as the case may be,
that relate to such Trust Mortgage Loan (except in the case of an Outside
Serviced Trust Mortgage Loan). None of the Trustee, any Custodian, the Master
Servicer or the Special Servicer shall be liable for any failure by a Mortgage
Loan Seller or the Depositor to comply with the document delivery requirements
of the respective Mortgage Loan Purchase Agreements and this Section 2.01(b).
After the Depositor's transfer of the Trust Mortgage Loans to the
Trustee pursuant to Section 2.01(a), the Depositor shall not take any action
inconsistent with the Trust's ownership of the Trust Mortgage Loans.
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(c) The Depositor hereby covenants that it shall retain with respect
to each Xxxxxx Trust Mortgage Loan (other than the Outside Serviced Trust
Mortgage Loans), and the UBS Mortgage Loan Seller has covenanted in the
UBS/Depositor Mortgage Loan Purchase Agreement that it shall retain with respect
to each UBS Trust Mortgage Loan (other than an Outside Serviced Trust Mortgage
Loan), an Independent Person (each such Person, a "Recording/Filing Agent")
through which the Depositor or the UBS Mortgage Loan Seller, as applicable,
shall: (i) promptly (and in any event within 45 days following the later of the
Closing Date and the date on which all necessary recording or filing (as
applicable) information is available to the subject Recording/Filing Agent)
submit for recording or filing, as the case may be, in the appropriate public
office for real property records or UCC Financing Statements, as appropriate,
(A) each related assignment of Mortgage and assignment of Assignment of Leases
in favor of, and delivered under clause (a)(iv) of the definition of "Mortgage
File" to, the Trustee, and (B) solely with respect to nursing facilities and
hospitality properties (as identified on Schedule VI hereto), each related
assignment of UCC Financing Statement in favor of, delivered under clause
(a)(xiv) of the definition of "Mortgage File" to, the Trustee; and (ii) cause
each such assignment of Mortgage, assignment of Assignment of Leases and
assignment of UCC Financing Statement to be delivered to the Trustee following
its return by the appropriate public office for real property records or UCC
Financing Statements, as appropriate, with copies of any such returned
assignments to be delivered by the Trustee to the Master Servicer, at the
expense of the Depositor (in the case of Xxxxxx Trust Mortgage Loans) or the UBS
Mortgage Loan Seller (in the case of UBS Trust Mortgage Loans), as applicable,
at least every 90 days after the Closing Date (or at such additional times upon
the request of the Master Servicer if reasonably necessary for the ongoing
administration and/or servicing of the related Serviced Trust Mortgage Loan by
the Master Servicer); provided that, in those instances where the public
recording office retains the original assignment of Mortgage or assignment of
Assignment of Leases, the Trustee shall obtain a certified copy of the recorded
original.
Notwithstanding the foregoing, the Depositor may, in the case of a
Xxxxxx Trust Mortgage Loan (other than an Outside Serviced Trust Mortgage Loan),
and the UBS Mortgage Loan Seller may, in the case of a UBS Trust Mortgage Loan
(other than an Outside Serviced Trust Mortgage Loan), request the Trustee to
submit for recording or filing, as applicable, any of the assignments of
Mortgage, assignments of Assignment of Leases or assignments of UCC Financing
Statements referred to in the prior paragraph, and in such event, the requesting
party shall cause any such unrecorded or unfiled document to be delivered to the
Trustee. The Trustee shall promptly undertake to submit for recording or filing
any such document upon its receipt thereof.
Each assignment of Mortgage and assignment of Assignment of Leases
referred to in the prior two paragraphs that is submitted for recording shall
reflect that it should be returned by the public recording office to the Trustee
or its agent following recording, and each assignment of UCC Financing Statement
referred to in the prior two paragraphs that is submitted for filing shall
reflect that the file copy thereof should be returned to the Trustee or its
agent following filing; provided that, in those instances where the public
recording office retains the original assignment of Mortgage or assignment of
Assignment of Leases, the Trustee shall obtain therefrom a certified copy of the
recorded original. At least every 90 days after the Closing Date (or at
additional times upon the request of the Master Servicer if reasonably necessary
for the ongoing administration and/or servicing of the related Trust Mortgage
Loan by the Master Servicer) and at the expense of the Depositor (in the case of
a Xxxxxx Trust Mortgage Loan (other than an Outside Serviced Trust Mortgage
Loan)) or the UBS Mortgage Loan Seller (in the case of a UBS Trust Mortgage Loan
(other than an Outside Serviced Trust Mortgage Loan)), the Trustee shall forward
to the Master Servicer a copy of any of the aforementioned
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assignments of Mortgage, assignments of Assignment of Leases and/or assignments
of UCC Financing Statements that have been received by the Trustee.
The Depositor shall bear the out-of-pocket costs and expenses of the
recording referred to in the first two paragraphs of this Section 2.01(c) with
respect to the Xxxxxx Trust Mortgage Loans (other than the Outside Serviced
Trust Mortgage Loans), and the UBS/Depositor Mortgage Loan Purchase Agreement
provides that the UBS Mortgage Loan Seller shall bear the out-of-pocket costs
and expenses of the recording referred to in the first two paragraphs of this
Section 2.01(c) with respect to the UBS Trust Mortgage Loans (other than the
Outside Serviced Trust Mortgage Loans).
If any of the assignments of Mortgage, assignments of Assignment of
Leases and/or assignments of UCC Financing Statements referred to in the first
two paragraphs of this Section 2.01(c) relating to a UBS Trust Mortgage Loan
(other than an Outside Serviced Trust Mortgage Loan) is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, then the
Trustee shall direct the UBS Mortgage Loan Seller (pursuant to the UBS/Depositor
Mortgage Loan Purchase Agreement) promptly to prepare or cause the preparation
of a substitute therefor or to cure such defect, as the case may be, and to
deliver to the Trustee the substitute or corrected document. If any of the
assignments of Mortgage, assignments of Assignment of Leases and/or assignments
of UCC Financing Statements referred to in the first two paragraphs of this
Section 2.01(c) relating to a Xxxxxx Trust Mortgage Loan (other than an Outside
Serviced Trust Mortgage Loan) is lost or returned unrecorded or unfiled, as the
case may be, because of a defect therein, then the Depositor shall promptly
prepare or cause the preparation of a substitute therefor or cure such defect,
as the case may be, and shall deliver to the Trustee the substitute or corrected
document. The Trustee shall upon receipt, whether from the UBS Mortgage Loan
Seller or the Depositor, cause the same to be duly recorded or filed, as
appropriate.
(d) In connection with the Depositor's assignment pursuant to Section
2.01(a) above, the Depositor shall, in the case of each Xxxxxx Trust Mortgage
Loan (other than an Outside Serviced Trust Mortgage Loan), deliver to and
deposit with, and the UBS Mortgage Loan Seller has agreed (pursuant to the
UBS/Depositor Mortgage Loan Purchase Agreement), in the case of each UBS Trust
Mortgage Loan (other than an Outside Serviced Trust Mortgage Loan), to deliver
to and deposit with, the Master Servicer (or, at the direction of the Master
Servicer, to and with the applicable Sub-Servicer), within 45 days of the
Closing Date, the Mortgage Loan Origination Documents that relate to such
Serviced Trust Mortgage Loan; provided that neither the Depositor nor the UBS
Mortgage Loan Seller shall be required to deliver any draft documents,
privileged or other communications or correspondence, credit underwriting or due
diligence analyses or information, credit committee briefs or memoranda or other
internal approval documents or data or internal worksheets, memoranda,
communications or evaluations.
The Master Servicer shall review the documents with respect to each
Serviced Trust Mortgage Loan delivered by the Depositor or the UBS Mortgage Loan
Seller pursuant to or as contemplated by the immediately preceding paragraph and
provide the Depositor or the UBS Mortgage Loan Seller, as applicable, with a
certificate (the "Master Servicer Certification") within 90 days of the Closing
Date acknowledging its (or, if the Master Servicer has directed that such
documents be delivered only to the applicable Sub-Servicer, the applicable
Sub-Servicer's) receipt as of the date of the Master Servicer Certification of
such documents actually received; provided that such review shall be limited to
identifying the document received, the Serviced Trust Mortgage Loan to which it
purports to relate, that it appears regular on its face and that it appears to
have been executed (where appropriate).
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Notwithstanding anything to the contrary set forth herein, to the extent the
Depositor or the UBS Mortgage Loan Seller, as applicable, has not been notified
in writing of its failure to deliver any document with respect to a Serviced
Trust Mortgage Loan required to be delivered pursuant to or as contemplated by
the immediately preceding paragraph prior to the first anniversary of the date
of the Master Servicer Certification, the Depositor or the UBS Mortgage Loan
Seller, as applicable, shall have no obligation to provide such document.
In addition, pursuant to the related Mortgage Loan Purchase Agreement,
each Mortgage Loan Seller will be required to deliver, on the Closing Date, to
the Master Servicer for deposit in the Pool Custodial Account, the Initial
Deposit relating to each Initial Deposit Mortgage Loan, if any, being sold by
such Mortgage Loan Seller. The Master Servicer shall hold all documents and
records received by it in accordance with this Section 2.01(d) (as well as any
funds received by it pursuant to Section 2.01(b)) on behalf of the Trustee in
trust for the benefit of the Certificateholders (and, insofar as they also
relate to any Serviced Non-Trust Mortgage Loan, on behalf of and for the benefit
of the related Serviced Non-Trust Mortgage Loan Noteholder).
(e) In connection with the obligations of the Master Servicer under
Sections 3.01(e) and 3.19(c), with regard to each Serviced Trust Mortgage Loan
that is secured by the interests of the related Mortgagor in a hospitality
property and each Serviced Trust Mortgage Loan that has a related letter of
credit, the Depositor (with respect to each such Serviced Trust Mortgage Loan
that is a Xxxxxx Trust Mortgage Loan) shall, and the UBS Mortgage Loan Seller
(with respect to each such Serviced Trust Mortgage Loan that is a UBS Trust
Mortgage Loan) will be obligated under the UBS/Depositor Mortgage Loan Purchase
Agreement to, deliver to and deposit with the Master Servicer, on or before the
Closing Date, any related franchise agreement and franchise comfort letter and
the original of such letter of credit.
(f) It is not intended that this Agreement create a partnership or a
joint-stock association.
SECTION 2.02. Acceptance of Trust Fund by Trustee.
(a) The Trustee, by its execution and delivery of this Agreement,
hereby accepts receipt, directly or through a Custodian on its behalf, of (i)
the Trust Mortgage Loans and all documents delivered to it that constitute
portions of the related Mortgage Files and (ii) all other assets delivered to it
and included in the Trust Fund, in good faith and without notice of any adverse
claim, and declares that it or a Custodian on its behalf holds and will hold
such documents and any other documents subsequently received by it that
constitute portions of the Mortgage Files, and that it holds and will hold the
Trust Mortgage Loans and such other assets, together with any other assets
subsequently delivered to it that are to be included in the Trust Fund, in trust
for the exclusive use and benefit of all present and future Certificateholders.
To the extent that the Mortgage File for any Serviced Combination Trust Mortgage
Loan relates to a Serviced Non-Trust Mortgage Loan, the Trustee shall also hold
such Mortgage File in trust for the use and benefit of the related Serviced
Non-Trust Mortgage Loan Noteholder. In connection with the foregoing, the
Trustee hereby certifies to each of the other parties hereto, each Mortgage Loan
Seller and each Underwriter that, as to each Trust Mortgage Loan, (i) the
Specially Designated Mortgage Loan Documents are in its possession or the
possession of a Custodian on its behalf, and (ii) the original Mortgage Note
(or, if accompanied by a lost note affidavit, the copy of such Mortgage Note)
received by it or any Custodian with respect to such Trust Mortgage Loan has
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been reviewed by it or by such Custodian on its behalf and (A) appears regular
on its face (handwritten additions, changes or corrections shall not constitute
irregularities if initialed by the Mortgagor), (B) appears to have been executed
(where appropriate) and (C) purports to relate to such Trust Mortgage Loan.
(b) The Trustee or a Custodian on its behalf shall review the
documents delivered to it or such Custodian with respect to each Mortgage Loan
(such review to be conducted with respect to each document so delivered, prior
to the date that a certification or deemed certification, as applicable, is
required to be delivered in accordance with the following sentence), and the
Trustee shall, or shall cause a Custodian on its behalf to, subject to Sections
2.01, 2.02(c) and 2.02(d), certify (at the times and in the manner set forth
below) to each of the other parties hereto, each Mortgage Loan Seller and each
Underwriter and, in the case of a Serviced Non-Trust Mortgage Loan, to the
related Serviced Non-Trust Mortgage Loan Noteholder(s), that, as to each
Mortgage Loan then subject to this Agreement (except as specifically identified
in any exception report annexed to such certification or delivered with a deemed
certification, as applicable): (A) all documents specified in clauses (a)(i)
through (a)(viii) and (a)(xiv) (without regard to the second parenthetical in
such clause (a)(xiv)) of the definition of "Mortgage File" or, in the case of an
Outside Serviced Trust Mortgage Loan, in clauses (b)(i) through (b)(iii) of the
definition of "Mortgage File", are in its possession or the possession of a
Custodian on its behalf; (B) the recordation/filing contemplated by Section
2.01(c) (except in the case of an Outside Serviced Trust Mortgage Loan) has been
completed (based solely on receipt by the Trustee or by a Custodian on its
behalf of the particular recorded/filed documents); (C) all documents received
by it or any Custodian with respect to such Mortgage Loan have been reviewed by
it or by such Custodian on its behalf and (1) appear regular on their face
(handwritten additions, changes or corrections shall not constitute
irregularities if initialed by the Mortgagor), (2) appear to have been executed
(where appropriate) and (3) purport to relate to such Mortgage Loan; and (D)
based on the examinations referred to in Section 2.02(a) above and this Section
2.02(b) and only as to the foregoing documents, the information set forth in the
Trust Mortgage Loan Schedule with respect to the items specified in clauses (v)
and (vi)(B) of the definition of "Trust Mortgage Loan Schedule" accurately
reflects the information set forth in the Mortgage File. The certification
referred to in the first sentence of this Section 2.02(b) shall be delivered in
writing, substantially in the form of Exhibit C hereto (with an exception report
annexed thereto), on or about (i) the 60th day following the Closing Date and
(ii) if any exceptions are noted, upon the earliest to occur of (X) the second
anniversary of the Closing Date, (Y) the day on which all material exceptions
have been removed and (Z) the day on which the Depositor has repurchased the
last affected Trust Mortgage Loan); provided that, if any exceptions are noted
following the initial certification in clause (i) of this sentence, then the
Trustee may deliver subsequent certifications in the form of an updated
exception report, on or about the 90th day following the Closing Date and
monthly thereafter until the final certification in clause (ii) of this sentence
is delivered (and upon and by delivery of each such updated exception report the
Trustee shall be deemed to have made the certifications set forth in clauses (A)
through (D) of the first sentence of this Section 2.02(b) as to each Mortgage
Loan then subject to this Agreement, except as specifically identified in such
updated exception report). If the Trustee's obligation to deliver the
certifications contemplated in this subsection terminates because two years have
elapsed since the Closing Date, the Trustee shall (or shall cause a Custodian on
its behalf to) deliver a comparable certification, upon request, to any party
hereto, any Serviced Non-Trust Mortgage Loan Noteholder and/or any Underwriter.
(c) None of the Trustee, the Master Servicer, the Special Servicer or
any Custodian is under any duty or obligation to inspect, review or examine any
of the documents, instruments,
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certificates or other papers relating to the Mortgage Loans delivered to it to
determine that the same are valid, legal, effective, genuine, binding,
enforceable, sufficient or appropriate for the represented purpose or that they
are other than what they purport to be on their face. Furthermore, none of the
Trustee, the Master Servicer, the Special Servicer or any Custodian shall have
any responsibility for determining whether the text of any assignment or
endorsement is in proper or recordable form, whether the requisite recording of
any document is in accordance with the requirements of any applicable
jurisdiction, or whether a blanket assignment is permitted in any applicable
jurisdiction.
(d) It is understood that the scope of the Trustee's review of the
Mortgage Files is limited solely to confirming that the documents specified in
clauses (i) through (vii) and (xiv) (or, in the case of an Outside Serviced
Trust Mortgage Loan, in clauses (b)(i) through (b)(iii)) of the definition of
"Mortgage File" have been received and such additional information as will be
necessary for delivering the certifications required by Sections 2.02(a) and (b)
above.
SECTION 2.03. Repurchase of Trust Mortgage Loans for Document Defects
and Breaches of Representations and Warranties.
(a) If any party hereto (other than the Depositor) discovers or
receives written notice, with respect to any Trust Mortgage Loan, that (i) any
document constituting a part of the related Mortgage File pursuant to clauses
(a)(i) through (a)(x) (or, in the case of an Outside Serviced Trust Mortgage
Loan, clause (b)(i)) of the definition of "Mortgage File" has not been executed
(if applicable) or is missing (each, a "Document Defect") or (ii) there exists a
breach of any representation or warranty of the UBS Mortgage Loan Seller made
pursuant to Section 3(b) of the UBS/Depositor Mortgage Loan Purchase Agreement
with respect to any UBS Trust Mortgage Loan (a "Breach") or a breach of any
representation or warranty of the Depositor made pursuant to Section 2.04(b)
hereof with respect to any Xxxxxx Trust Mortgage Loan (also, a "Breach"), then
such party shall give prompt written notice thereof to each Rating Agency, the
related Mortgage Loan Seller, the other parties hereto and the Controlling Class
Representative. If the Depositor (in the case of a Xxxxxx Trust Mortgage Loan)
or the UBS Mortgage Loan Seller (in the case of a UBS Trust Mortgage Loan)
receives written notice of a Document Defect or a Breach and such Document
Defect or Breach with respect to any Trust Mortgage Loan, materially and
adversely affects the value of such Trust Mortgage Loan at the time of such
notice, then such Document Defect shall constitute a "Material Document Defect"
or such Breach shall constitute a "Material Breach", as the case may be.
Promptly upon becoming aware of any such Material Document Defect or
Material Breach with respect to a UBS Trust Mortgage Loan, the Trustee shall
deliver a Seller/Depositor Notification to the UBS Mortgage Loan Seller, the
Master Servicer and the Special Servicer and shall require the UBS Mortgage Loan
Seller, within the time period and subject to the conditions provided for in the
UBS/Depositor Mortgage Loan Purchase Agreement, except as otherwise contemplated
by Sections 2.03(d) and 2.03(e), to cure such Material Document Defect or
Material Breach, as the case may be, in all material respects, or repurchase the
affected Trust Mortgage Loan or any related REO Property (or, in the case of an
REO Property related to a Loan Combination, the Trust's interest therein) at the
applicable Purchase Price by wire transfer of immediately available funds to the
Pool Custodial Account. Promptly upon becoming aware of any such Material
Document Defect or Material Breach with respect to a Xxxxxx Trust Mortgage Loan,
the Trustee shall deliver a Seller/Depositor Notification to the Depositor, the
Master Servicer and the Special Servicer, and the Depositor shall, subject to
Sections 2.03(d), 2.03(e) and 2.03(f), (A) not later than 90 days after (1) the
Depositor and the Trustee
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have agreed upon the existence of such Material Document Defect or Material
Breach or (2) a court of competent jurisdiction makes a final non-appealable
determination that a Material Document Defect or Material Breach exists or (B)
in the case of a Material Document Defect or Material Breach that affects
whether a Xxxxxx Trust Mortgage Loan is or will continue to be a "qualified
mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"),
not later than 90 days following the discovery by any party of such Material
Document Defect or Material Breach (either such 90-day period, in the case of
(A) or (B) (with respect to a Xxxxxx Trust Mortgage Loan), and any "Initial
Resolution Period", as defined in the UBS/Depositor Mortgage Loan Purchase
Agreement (with respect to a UBS Trust Mortgage Loan), as applicable, are each
referred to herein as an "Initial Resolution Period"), (i) cure such Material
Document Defect or Material Breach, as the case may be, in all material respects
(which cure shall include payment of any out-of-pocket expenses that are
reasonably incurred and directly attributable to pursuing such a claim based on
such Material Document Defect or Material Breach associated therewith) or (ii)
if any such Material Document Defect or Material Breach, as the case may be,
cannot be cured within the Initial Resolution Period, repurchase the affected
Xxxxxx Trust Mortgage Loan or any related REO Property (or, in the case of an
REO Property related to a Loan Combination, the Trust's interest therein) at the
applicable Purchase Price by wire transfer of immediately available funds to the
Pool Custodial Account; provided, however, that if (w) such Material Document
Defect or Material Breach is capable of being cured but not within the Initial
Resolution Period, (x) such Material Document Defect or Material Breach, as the
case may be, does not affect whether any Xxxxxx Trust Mortgage Loan is a
Qualified Mortgage, (y) the Depositor has commenced and is diligently proceeding
with the cure of such Material Document Defect or Material Breach, as the case
may be, within the Initial Resolution Period, and (z) the Depositor shall have
delivered to the Trustee an Officer's Certificate confirming that such Material
Breach or Material Document Defect, as the case may be, is not capable of being
cured within the applicable Initial Resolution Period, setting forth what
actions the Depositor is pursuing in connection with the cure thereof and
stating that the Depositor anticipates that such Material Breach or Material
Document Defect, as the case may be, will be cured within an additional period
not to exceed 90 days beyond the end of the Initial Resolution Period, then the
Depositor shall have an additional 90-day period (such additional 90-day period
(with respect to a Xxxxxx Trust Mortgage Loan), and any "Resolution Extension
Period", as defined in the UBS/Depositor Mortgage Loan Purchase Agreement (with
respect to a UBS Trust Mortgage Loan), as applicable, are each referred to
herein as the "Resolution Extension Period"), to complete such cure or, failing
such, to repurchase the affected Trust Mortgage Loan (or the related Mortgaged
Property); and provided, further, that, if any such Material Document Defect is
still not cured after the Initial Resolution Period and any such Resolution
Extension Period solely due to the failure of the Depositor to have received a
recorded document, then the Depositor shall be entitled to continue to defer its
cure and repurchase obligations in respect of such Material Document Defect so
long as the Depositor certifies to the Trustee every six months thereafter that
the Material Document Defect is still in effect solely because of its failure to
have received the recorded document and that the Depositor is diligently
pursuing the cure of such defect (specifying the actions being taken). The
parties acknowledge that neither delivery of a certification or schedule of
exceptions to the Depositor (in the case of a Xxxxxx Trust Mortgage Loan) or the
UBS Mortgage Loan Seller (in the case of a UBS Trust Mortgage Loan) pursuant to
Section 2.02(b) or otherwise nor possession of such certification or schedule by
the Depositor (in the case of a Xxxxxx Trust Mortgage Loan) or the UBS Mortgage
Loan Seller (in the case of a UBS Trust Mortgage Loan) shall, in and of itself,
constitute delivery of notice of any Material Document Defect or Material Breach
or knowledge or awareness by the Depositor or the UBS Mortgage Loan Seller, as
the case may be, of any Material Document Defect or Material Breach.
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If, during the period of deferral by the Depositor of its cure and
repurchase obligations as contemplated by the last proviso of the penultimate
sentence of the preceding paragraph, or during any comparable deferral by the
UBS Mortgage Loan Seller of its cure and repurchase obligations as provided in
Section 5 of the UBS/Depositor Mortgage Loan Purchase Agreement, as applicable,
the Trust Mortgage Loan that is the subject of the Material Document Defect
either becomes a Specially Serviced Trust Mortgage Loan or becomes the subject
of a proposed or actual assumption of the obligations of the related Mortgagor
under such Trust Mortgage Loan, then (i) any party to this Agreement that
becomes aware of such event shall deliver a Seller/Depositor Notification to
such effect (unless a Seller/Depositor Notification with respect to such event
has already been delivered by another party) to the Master Servicer, the Special
Servicer, the Trustee, the Depositor (in the case of a Xxxxxx Trust Mortgage
Loan) and the UBS Mortgage Loan Seller (in the case of a UBS Trust Mortgage
Loan), and (ii) the Trustee, upon becoming aware of such event, shall deliver a
Seller/Depositor Notification to the Master Servicer, the Special Servicer, the
Depositor (in the case of a Xxxxxx Trust Mortgage Loan) and the UBS Mortgage
Loan Seller (in the case of a UBS Trust Mortgage Loan), providing notice of such
event and directing the Depositor or the UBS Mortgage Loan Seller, as
applicable, to cure the subject Material Document Defect within 15 days of
receipt of such Seller/Depositor Notification. If, upon the expiration of such
15-day period, the Depositor or the UBS Mortgage Loan Seller, as applicable, has
failed to cure the subject Material Document Defect, the Master Servicer or the
Special Servicer, as applicable, shall be entitled (but not obligated) to
perform the obligations of the Depositor or the UBS Mortgage Loan Seller, as
applicable, with respect to curing the subject Material Document Defect; and,
upon electing to perform such obligations, the Master Servicer or the Special
Servicer, as applicable, shall promptly deliver a Seller/Depositor Notification
to such effect. In connection with the preceding sentence, the Depositor will,
and the UBS Mortgage Loan Seller will be obligated under the UBS/Depositor
Mortgage Loan Purchase Agreement to, pay all reasonable actual out-of-pocket
costs and expenses in connection with the applicable servicer's effecting such
cure.
(b) In connection with the events in Section 2.03(a), the Trustee
shall prepare and deliver, in each case promptly upon becoming aware of such
event, to the Master Servicer, the Special Servicer and either the Depositor
(with respect to a Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller
(with respect to a UBS Trust Mortgage Loan), as applicable, a Seller/Depositor
Notification identifying and describing the circumstances identified in the
definition of "Seller/Depositor Notification" (unless, in the case of an event
described in clauses (iii), (iv) and/or (vi), as applicable, of the definition
of "Seller/Depositor Notification", a Seller/Depositor Notification with respect
to such event has already been delivered by the Master Servicer or the Special
Servicer). Further, in connection with the events in Section 2.03(a), the Master
Servicer or the Special Servicer, as applicable, shall prepare and deliver, in
each case promptly upon becoming aware of such event, to the other such
servicer, the Trustee and either the Depositor (with respect to a Xxxxxx Trust
Mortgage Loan) or the UBS Mortgage Loan Seller (with respect to a UBS Trust
Mortgage Loan), as applicable, a Seller/Depositor Notification identifying and
describing the circumstances identified in clauses (iii), (iv) and/or (vi), as
applicable, of the definition of "Seller/Depositor Notification" (unless such
notification has already been delivered). A copy of each such Seller/Depositor
Notification shall also be delivered to the Controlling Class Representative
and, in the case of an event described in clauses (v) and/or (vii) of the
definition of "Seller/Depositor Notification", to either internal counsel to the
Depositor (with respect to a Xxxxxx Trust Mortgage Loan) or counsel to the UBS
Mortgage Loan Seller (with respect to a UBS Trust Mortgage Loan), as applicable,
to the extent the Trustee, Master Servicer or Special Servicer, as applicable,
knows the identity of such person.
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(c) If one or more (but not all) of the Trust Mortgage Loans
constituting a Cross-Collateralized Group are to be repurchased by the Depositor
or the UBS Mortgage Loan Seller as contemplated by this Section 2.03, then,
prior to the subject repurchase, the Depositor or the UBS Mortgage Loan Seller,
as the case may be, or its designee shall use its reasonable efforts, subject to
the terms of the related Trust Mortgage Loan(s), to prepare and, to the extent
necessary and appropriate, have executed by the related Mortgagor and record,
such documentation as may be necessary to terminate the cross-collateralization
between the Trust Mortgage Loan(s) in such Cross-Collateralized Group that are
to be repurchased, on the one hand, and the remaining Trust Mortgage Loan(s)
therein, on the other hand, such that those two groups of Trust Mortgage Loans
are each secured only by the Mortgaged Properties identified in the Trust
Mortgage Loan Schedule as directly corresponding thereto; provided that no such
termination shall be effected unless and until (i) the Controlling Class
Representative, if one is then acting, has consented (which consent shall not be
unreasonably withheld and shall be deemed to have been given if no written
objection is received by the Depositor or the UBS Mortgage Loan Seller, as the
case may be, within ten (10) Business Days of the Controlling Class
Representative's receipt of a written request for such consent) and (ii) the
Trustee has received from the Depositor or the UBS Mortgage Loan Seller, as the
case may be, (A) an Opinion of Counsel to the effect that such termination would
not cause an Adverse REMIC Event to occur with respect to any REMIC Pool or an
Adverse Grantor Trust Event to occur with respect to the Grantor Trust and (B)
written confirmation from each Rating Agency that such termination would not
cause an Adverse Rating Event to occur with respect to any Class of
Certificates; and provided, further, that the Depositor, in the case of Xxxxxx
Trust Mortgage Loans, or the UBS Mortgage Loan Seller, in the case of UBS Trust
Mortgage Loans, may, at its option, purchase the entire subject
Cross-Collateralized Group in lieu of effecting a termination of the
cross-collateralization. All costs and expenses incurred by the Trustee or any
Person on its behalf pursuant to this paragraph shall be included in the
calculation of the Purchase Price for the Trust Mortgage Loan(s) to be
repurchased. If the cross-collateralization of any Cross-Collateralized Group is
not or cannot be terminated as contemplated by this paragraph, then, for
purposes of (i) determining whether the subject Breach or Document Defect, as
the case may be, materially and adversely affects the value of such
Cross-Collateralized Group and (ii) the application of remedies, such
Cross-Collateralized Group shall be treated as a single Trust Mortgage Loan.
(d) Notwithstanding the foregoing, if there exists a Breach of that
portion of the representation or warranty on the part of the Depositor set forth
in, or made pursuant to, paragraph (xlviii) of Schedule II hereto, or on the
part of the UBS Mortgage Loan Seller set forth in, or made pursuant to,
paragraph (xlviii) of Exhibit B to the UBS/Depositor Mortgage Loan Purchase
Agreement, in each case specifically relating to whether or not the Mortgage
Loan documents or any particular Mortgage Loan document for any Mortgage Loan
requires the related Mortgagor to bear the reasonable costs and expenses
associated with the subject matter of such representation or warranty, as set
forth in such representation or warranty, then the Master Servicer shall (and
the Special Servicer may) direct the Depositor (in the case of a Xxxxxx Trust
Mortgage Loan) or the UBS Mortgage Loan Seller (in the case of a UBS Trust
Mortgage Loan) in writing to wire transfer to the Pool Custodial Account, within
90 days of such party's receipt of such direction, the amount of any such
reasonable costs and expenses incurred by the Trust that (i) are due from the
Mortgagor, (ii) otherwise would have been required to be paid by the Mortgagor
if such representation or warranty with respect to such costs and expenses had
in fact been true, as set forth in the related representation or warranty, (iii)
have not been paid by the Mortgagor, (iv) are the basis of such Breach and (v)
constitute "Covered Costs". Upon payment of such costs, the Depositor (in the
case of a Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in the
case of a UBS Trust Mortgage Loan) shall be deemed to have cured such Breach in
all respects.
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Provided that such payment is made, this paragraph describes the sole remedy
available to the Certificateholders and the Trustee on their behalf regarding
any such Breach, regardless of whether it constitutes a Material Breach, and
neither the Depositor (in the case of a Xxxxxx Trust Mortgage Loan) nor the UBS
Mortgage Loan Seller (in the case of a UBS Trust Mortgage Loan) shall be
obligated to otherwise cure such Breach or repurchase the affected Trust
Mortgage Loan under any circumstances. Amounts deposited in the Pool Custodial
Account pursuant to this paragraph shall constitute "Liquidation Proceeds" for
all purposes of this Agreement (other than Section 3.11(c)).
(e) Subject to the penultimate sentence of this paragraph and subject
to Section 2.03(d), if the Depositor determines that a Material Breach (other
than a Material Breach of a representation or warranty on the part of the
Depositor set forth in, or made pursuant to, paragraph (xvii) of Schedule II
hereto) or a Material Document Defect with respect to a Xxxxxx Trust Mortgage
Loan is not capable of being cured in accordance with Section 2.03(a), or the
UBS Mortgage Loan Seller determines that a Material Breach (other than a
Material Breach of a representation or warranty on the part of the UBS Mortgage
Loan Seller set forth in, or made pursuant to, paragraph (xvii) of Exhibit B to
the UBS/Depositor Mortgage Loan Purchase Agreement) or Material Document Defect
with respect to a UBS Trust Mortgage Loan is not capable of being cured in
accordance with Section 5(a) of the UBS/Depositor Mortgage Loan Purchase
Agreement, then in lieu of repurchasing such Trust Mortgage Loan the Depositor
or the UBS Mortgage Loan Seller, as the case may be, may, at its sole option,
pay a cash amount equal to the loss of value (each such payment, a "Loss of
Value Payment") with respect to such Trust Mortgage Loan, which loss of value is
directly attributed to such Material Breach or Material Document Defect, as the
case may be. The amount of each such Loss of Value Payment shall be determined
either (i) by mutual agreement of the Special Servicer on behalf of the Trust
with respect to the subject Material Breach or Material Document Defect, as the
case may be, and either the Depositor or the UBS Mortgage Loan Seller, as the
case may be, or (ii) by judicial decision; provided that, in the event there is
a legal action for determining the existence of a Material Breach or a Material
Document Defect with respect to any Trust Mortgage Loan, such legal action must
also include a determination of the amount of the loss of value to such Trust
Mortgage Loan directly attributed to such Material Breach or such Material
Document Defect, as the case may be. Provided that such payment is made, this
paragraph describes the sole remedy available to the Certificateholders and the
Trustee on their behalf regarding any such Material Breach or Material Document
Defect and neither the Depositor (in the case of a Xxxxxx Trust Mortgage Loan)
nor the UBS Mortgage Loan Seller (in the case of a UBS Trust Mortgage Loan)
shall be obligated to otherwise cure such Material Breach or Material Document
Defect or repurchase the affected Mortgage Loan based on such Material Breach or
Material Document Defect under any circumstances. Notwithstanding the foregoing
provisions of this Section 2.03(e), if substantially all of the loss of value to
a Mortgage Loan was caused by a Material Breach or Material Document Defect,
which Material Breach or Material Document Defect is not capable of being cured,
then this Section 2.03(e) shall not apply, and the Depositor (in the case of a
Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in the case of a
UBS Trust Mortgage Loan) shall be obligated to repurchase the affected Mortgage
Loan at the applicable Purchase Price in accordance with Section 2.03(a); and,
furthermore, neither the Depositor nor the UBS Mortgage Loan Seller shall have
the option of delivering Loss of Value Payments in connection with any Material
Breach relating to a Trust Mortgage Loan's failure to be a Qualified Mortgage.
In the event there is a Loss of Value Payment made by the Depositor or the UBS
Mortgage Loan Seller, as the case may be, in accordance with this Section
2.03(e), the amount of such Loss of Value Payment shall be deposited into the
Loss of Value Reserve Fund to be applied in accordance with Section 3.05(e).
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In the event the amount of any Loss of Value Payment is determined by
judicial decision, then such Loss of Value Payment shall also include the
payment of any costs and expenses (including costs incurred in establishing the
amount of any related loss of value to the subject Trust Mortgage Loan) that
are: (i) reasonably incurred in good faith by the Master Servicer, the Special
Servicer and/or the Trustee (on behalf of the Trust) in enforcing the rights of
the Trust against the Depositor or the UBS Mortgage Loan Seller with respect to
the subject Material Breach or Material Document Defect, as the case may be; and
(ii) directly attributable to the enforcement of the rights of the Trust with
respect to the subject Material Breach or Material Document Defect, as the case
may be; provided that, if the Depositor (with respect to a Xxxxxx Trust Mortgage
Loan) or the UBS Mortgage Loan Seller (with respect to a UBS Trust Mortgage
Loan) tenders a loss of value payment in a specified amount in connection with a
Material Breach or Material Document Defect prior to the institution of legal
proceedings and that offer is rejected, and if an amount equal to or less than
the loss of value payment originally tendered by the Depositor or the UBS
Mortgage Loan Seller, as the case may be, is ultimately determined by judicial
decision to be the actual amount of the Loss of Value Payment attributed to such
Material Breach or Material Document Defect, as the case may be, then that Loss
of Value Payment shall not include the payment of any costs or expenses incurred
by the Master Servicer, the Special Servicer and/or the Trustee in connection
with the subject litigation; provided, further, that, if the Special Servicer
requests a loss of value payment from the Depositor or the UBS Mortgage Loan
Seller, as the case may be, of a specified amount in connection with a Material
Breach or Material Document Defect, as the case may be, and the Depositor or the
UBS Mortgage Loan Seller, as the case may be, refuses to pay that amount, and if
an amount equal to or greater than the loss of value payment originally
requested by the Special Servicer is ultimately determined by judicial decision
to be the actual Loss of Value Payment attributable to such Material Document
Defect or Material Breach, then that Loss of Value Payment shall also include
the payment of all costs and expenses reasonably incurred in connection with
that judicial determination; and provided, further, that, if the Depositor (with
respect to a Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (with
respect to a UBS Trust Mortgage Loan) tenders a loss of value payment in
connection with a Material Breach or Material Document Defect, as the case may
be, in a specified amount, and the Special Servicer rejects such tender and
requests a greater loss of value payment amount, and an amount in between the
respective amounts tendered and requested is ultimately determined by judicial
decision to be the actual Loss of Value Payment attributable to such Material
Breach or Material Document Defect, as the case may be, then that Loss of Value
Payment shall also include the payment of an amount equal to the product of (i)
all costs and expenses reasonably incurred in connection with that judicial
determination, multiplied by (ii) a fraction, the numerator of which is the
excess of the amount determined by judicial decision over the amount tendered by
the Depositor or the UBS Mortgage Loan Seller, as the case may be, and the
denominator of which is the excess of the amount requested by the Special
Servicer over the amount tendered by the Depositor or the UBS Mortgage Loan
Seller, as the case may be. Notwithstanding the foregoing, in the event any Loss
of Value Payment is determined by the parties hereto by mutual agreement (and
not by a judicial decision), that Loss of Value Payment shall not include any
costs and expenses incurred by the Master Servicer, the Special Servicer or the
Trustee unless such costs and expenses were specifically included in such mutual
agreement.
(f) Notwithstanding the foregoing, if there exists a Material Breach
of the representation or warranty on the part of the Depositor set forth in, or
made pursuant to, paragraph (xvii) of Schedule II hereto or the UBS Mortgage
Loan Seller set forth in, or made pursuant to, paragraph (xvii) of Exhibit B to
the UBS/Depositor Mortgage Loan Purchase Agreement, and the subject Mortgage
Loan becomes a Qualified Mortgage prior to the expiration of the Initial
Resolution Period applicable to
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a Material Document Defect or Material Breach that affects whether a Mortgage
Loan is a Qualified Mortgage, and without otherwise causing an Adverse REMIC
Event or an Adverse Grantor Trust Event, then such breach will be cured and the
Depositor or the UBS Mortgage Loan Seller, as the case may be, will not be
obligated to repurchase or otherwise remedy such Breach.
(g) In connection with any purchase or repurchase of a Trust Mortgage
Loan pursuant to or otherwise as contemplated by this Section 2.03, the Trustee,
the Custodian, the Master Servicer and the Special Servicer shall each tender to
the purchasing/repurchasing entity, upon delivery to each of them of a receipt
executed by the purchasing/repurchasing entity, all portions of the Mortgage
File and other documents pertaining to such Trust Mortgage Loan possessed by it,
and each document that constitutes a part of the Mortgage File shall be endorsed
or assigned to the extent necessary or appropriate to the
purchasing/repurchasing entity or its designee in the same manner, but only if
the respective documents have been previously assigned or endorsed to the
Trustee, and pursuant to appropriate forms of assignment, substantially similar
to the manner and forms pursuant to which such documents were previously
assigned to the Trustee; provided that such tender by the Trustee or by a
Custodian on its behalf shall be conditioned upon its receipt from the Master
Servicer of a Request for Release accompanied by a certification of a Servicing
Officer to the effect that all amounts received or to be received in connection
with such purchase or repurchase, as the case may be, which are required to be
deposited in the Pool Custodial Account pursuant to Section 3.04(a) have been
deposited. The Master Servicer shall, and is hereby authorized and empowered by
the Trustee to, prepare, execute and deliver in its own name, on behalf of the
Certificateholders and the Trustee or any of them, the endorsements and
assignments contemplated by this Section 2.03(g), and such other instruments as
may be necessary or appropriate to transfer title to an REO Property or any
interest therein in connection with the repurchase of an REO Trust Mortgage Loan
and the Trustee shall execute and deliver any powers of attorney necessary to
permit the Master Servicer to do so; provided, however, that the Trustee shall
not be held liable for any misuse of any such power of attorney by the Master
Servicer.
(h) The UBS/Depositor Mortgage Loan Purchase Agreement provides the
sole remedies available to the Certificateholders, or the Trustee on behalf of
the Certificateholders, respecting any Document Defect or Breach with respect to
any UBS Trust Mortgage Loan. This Section 2.03 provides the sole remedies
available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect or Breach with respect to any
Xxxxxx Trust Mortgage Loan. Any purchase of a Trust Mortgage Loan pursuant to or
as contemplated by this Section 2.03 shall be on a whole loan, servicing release
basis.
(i) In the event that the Master Servicer receives notice from the
Mortgagor under any Early Defeasance Trust Mortgage Loan that (i) such Mortgagor
intends to defease such Early Defeasance Trust Mortgage Loan in whole on or
before the second anniversary of the Closing Date and the cash amount tendered
by such Mortgagor to purchase Defeasance Collateral or other permitted
collateral in order to defease such Early Defeasance Trust Mortgage Loan (in
accordance with the related loan documents) is less than the Purchase Price that
would be applicable in the event of a repurchase of such Trust Mortgage Loan in
connection with a Material Breach or a Material Document Defect, or (ii) such
Mortgagor intends to partially defease such Early Defeasance Trust Mortgage Loan
on or prior to the second anniversary of the Closing Date, or (iii) such
Mortgagor intends to defease such Early Defeasance Trust Mortgage Loan in whole
on or before the second anniversary of the Closing Date and such Mortgagor is to
tender Defeasance Collateral or such other collateral as is permitted in
connection with a defeasance under the related loan documents that does not
constitute a cash amount
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equal to or greater than the Purchase Price set forth in clause (i) above, then
the Master Servicer shall promptly notify the Trustee and either the Depositor
(with respect to a Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller
(with respect to a UBS Trust Mortgage Loan) of such Mortgagor's intention, and
the Trustee shall direct the Depositor (with respect to a Xxxxxx Trust Mortgage
Loan) or the UBS Mortgage Loan Seller (with respect to a UBS Trust Mortgage
Loan), as applicable, to repurchase (and the Depositor, with respect to a Xxxxxx
Trust Mortgage Loan, hereby agrees, and the UBS Mortgage Loan Seller, with
respect to a UBS Trust Mortgage Loan, pursuant to the UBS/Depositor Mortgage
Loan Purchase Agreement, has agreed to repurchase) such Trust Mortgage Loan at
the Purchase Price that would be applicable in the event of a repurchase of such
Trust Mortgage Loan in connection with a Material Breach or a Material Document
Defect, upon deposit by the related Mortgagor of Defeasance Collateral, or cash
sufficient to purchase the Defeasance Collateral, as contemplated by the related
loan documents (if applicable), but in any event no later than the related
defeasance date.
(j) In connection with any repurchase of any Early Defeasance Trust
Mortgage Loan, pursuant to or as contemplated by this Section 2.03, the Tax
Administrator shall in accordance with Section 9.02 effect a "qualified
liquidation" of the related Loan REMIC in accordance with the REMIC Provisions.
The Depositor (in the case of a Xxxxxx Trust Mortgage Loan) hereby agrees to
pay, and the UBS Mortgage Loan Seller pursuant to the UBS/Depositor Mortgage
Loan Purchase Agreement (in the case of a UBS Trust Mortgage Loan) is obligated
to pay, all reasonable costs and expenses, including the costs of any Opinions
of Counsel, in connection with any such "qualified liquidation" of a Loan REMIC
in accordance with the REMIC Provisions.
SECTION 2.04. Representations, Warranties and Covenants of the
Depositor.
(a) The Depositor hereby represents, warrants and covenants to the
Trustee, for its own benefit and the benefit of the Certificateholders, and to
the Fiscal Agent, the Master Servicer and the Special Servicer, as of the
Closing Date, that:
(i) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the
Depositor, and the performance and compliance with the terms of this
Agreement by the Depositor, will not violate the Depositor's certificate of
incorporation or by-laws or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other instrument to
which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Depositor, enforceable against the Depositor
in accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of
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creditors' rights generally, and (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(v) The Depositor is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or demand
of any federal, state or local governmental or regulatory authority, which
violation, in the Depositor's good faith and reasonable judgment, is likely
to affect materially and adversely either the ability of the Depositor to
perform its obligations under this Agreement or the financial condition of
the Depositor.
(vi) The transfer of the Trust Mortgage Loans to the Trustee as
contemplated herein requires no regulatory approval, other than any such
approvals as have been obtained, and is not subject to any bulk transfer or
similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring the Trust Mortgage Loans
to the Trustee with any intent to hinder, delay or defraud its present or
future creditors.
(viii) The Depositor has been solvent at all relevant times prior
to, and will not be rendered insolvent by, its transfer of the Trust
Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage
Loans to the Trustee pursuant to Section 2.01(a), the value of the
Depositor's assets, either taken at their present fair saleable value or at
fair valuation, will exceed the amount of the Depositor's debts and
obligations, including contingent and unliquidated debts and obligations of
the Depositor, and the Depositor will not be left with unreasonably small
assets or capital with which to engage in and conduct its business.
(x) The Depositor does not intend to, and does not believe that
it will, incur debts or obligations beyond its ability to pay such debts
and obligations as they mature.
(xi) No proceedings looking toward merger, liquidation,
dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's
knowledge, threatened against the Depositor that, if determined adversely
to the Depositor, would prohibit the Depositor from entering into this
Agreement or that, in the Depositor's good faith and reasonable judgment,
is likely to materially and adversely affect either the ability of the
Depositor to perform its obligations under this Agreement or the financial
condition of the Depositor.
(xiii) Except for any actions that are the express responsibility
of another party hereunder or under the Mortgage Loan Purchase Agreements,
and further except for actions that the Depositor is expressly permitted to
complete subsequent to the Closing Date, the Depositor has taken all
actions required under applicable law to effectuate the transfer of the
Trust Mortgage Loans by the Depositor to the Trustee.
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(xiv) Immediately prior to the transfer of the UBS Trust Mortgage
Loans to the Trust pursuant to this Agreement (and assuming that the UBS
Mortgage Loan Seller transferred to the Depositor good and marketable title
to each UBS Trust Mortgage Loan, free and clear of all liens, claims,
encumbrances and other interests), (A) the Depositor had good and
marketable title to, and was the sole owner and holder of, each UBS Trust
Mortgage Loan; and (B) the Depositor has full right and authority to sell,
assign and transfer the UBS Trust Mortgage Loans, exclusive of the
servicing rights pertaining thereto.
(b) The Depositor hereby makes to the Trustee, for the Trustee's own
benefit and the benefit of the Certificateholders, with respect to each Xxxxxx
Trust Mortgage Loan only, the representations and warranties shown on Schedule
II hereto, as of the Closing Date or such other date specified in the particular
representation and warranty, subject to the exceptions set forth on Schedule III
hereto (the headings set forth in Schedule II hereto with respect to each
representation and warranty being for convenience of reference only and in no
way limiting, expanding or otherwise affecting the scope or subject matter
thereof).
Except as expressly provided in Section 2.04(a), the Depositor does
not make any representations or warranties regarding the UBS Trust Mortgage
Loans.
(c) The representations, warranties and covenants of the Depositor set
forth in or made pursuant to Section 2.04(a) and Section 2.04(b) shall survive
the execution and delivery of this Agreement and shall inure to the benefit of
the Persons for whose benefit they were made for so long as the Trust Fund
remains in existence. Upon discovery by any party hereto of any breach of any of
such representations, warranties and covenants, the party discovering such
breach shall give prompt written notice thereof to the other parties.
SECTION 2.05. Acceptance of Grantor Trust Assets by Trustee; Issuance
of the Class V Certificates.
(a) It is the intention of the parties hereto that the segregated pool
of assets consisting of any collections of Additional Interest Received by the
Trust on or with respect to the ARD Trust Mortgage Loans, if any, and any
successor REO Trust Mortgage Loans with respect thereto constitute a grantor
trust for federal income tax purposes. The Trustee, by its execution and
delivery hereof, acknowledges the assignment to it of the Grantor Trust Assets,
if any, and declares that it holds and will hold any such assets in trust for
the exclusive use and benefit of all present and future Holders of the Class V
Certificates. Concurrently with the assignment to it of the Grantor Trust
Assets, subject to Section 2.05(b), the Certificate Registrar shall execute, and
the Authenticating Agent shall authenticate and deliver, to or upon the order of
the Depositor, the Class V Certificates in authorized denominations evidencing,
in the aggregate, the entire beneficial ownership of the Grantor Trust. Subject
to Section 2.05(b): (i) the Class V Certificates shall evidence the entire
beneficial ownership of the Grantor Trust; and (ii) the rights of Holders of the
Class V Certificates to receive distributions from the proceeds of the Grantor
Trust Assets, and all ownership interests of such Holders in and to such
distributions, shall be as set forth in this Agreement.
(b) Notwithstanding Section 2.05(a) or anything else to the contrary
set forth in this Agreement, if the Mortgage Pool does not, on the Closing Date,
include any ARD Trust Mortgage Loans, then: (i) there shall be no Grantor Trust;
(ii) no Class V Certificates shall be issued; (iii) insofar as, but only insofar
as, the provisions of this Agreement specifically relate to the Grantor Trust,
Grantor
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Trust Assets, Class V Certificates, the Class V Sub-Account, ARD Mortgage Loans,
ARD Trust Mortgage Loan and/or Additional Interest, such provisions (other than
this Section 2.05(b), the definitions of such terms set forth in Section 1.01
and Schedule VII annexed hereto) shall, without otherwise affecting the
enforceability or validity of this Agreement with respect to any other matters,
be of no force and effect; and (iv) the parties hereto shall have no rights or
obligations with respect to the Grantor Trust, Grantor Trust Assets, Class V
Certificates, the Class V Sub-Account, ARD Mortgage Loans, ARD Trust Mortgage
Loans and/or Additional Interest.
SECTION 2.06. Acceptance of Loan REMICs by Trustee; Execution,
Authentication and Delivery of Class R-LR Certificates;
Creation of Loan REMIC Regular Interests.
(a) The Trustee hereby acknowledges the assignment to it of any assets
to be included in the Loan REMICs. Concurrently with such assignment and in
exchange therefor, subject to Section 2.06(b), (i) the Loan REMIC Regular
Interests have been issued, and (ii) pursuant to the written request of the
Depositor executed by an authorized officer thereof, the Trustee, as Certificate
Registrar, has executed, and the Trustee, as Authenticating Agent, has
authenticated and delivered to or upon the order of the Depositor, the Class
R-LR Certificates in authorized denominations. Subject to Section 2.06(b): the
interests evidenced by the Class R-LR Certificates, together with the related
Loan REMIC Regular Interests, constitute the entire beneficial ownership of the
respective Loan REMICs; and (ii) the rights of the Class R-LR Certificateholders
and REMIC I (as holder of the Loan REMIC Regular Interests) to receive
distributions from the proceeds of the Early Defeasance Trust Mortgage Loans (or
any successor REO Mortgage Loans with respect thereto) in respect of the Class
R-LR Certificates and the Loan REMIC Regular Interests, respectively, and all
ownership interests evidenced or constituted by the Class R-LR Certificates and
the Loan REMIC Regular Interests, shall be as set forth in this Agreement.
(b) Notwithstanding Section 2.06(a) or anything else to the contrary
set forth in this Agreement, if the Mortgage Pool does not, on the Closing Date,
include any Early Defeasance Trust Mortgage Loans, then: (i) there shall be no
Loan REMICs; (ii) no Class R-LR Certificates and no Loan REMIC Interests shall
be issued; (iii) insofar as, but only insofar as, the provisions of this
Agreement specifically relate to Loan REMICs, Loan REMIC Interests, Class R-LR
Certificates, Excess Defeasance Deposit Proceeds and/or Early Defeasance Trust
Mortgage Loans, such provisions (other than this Section 2.06(b), the
definitions of such terms set forth in Section 1.01 and the Trust Mortgage Loan
Schedule) shall, without otherwise affecting the enforceability or validity of
this Agreement with respect to any other matters, be of no force and effect; and
(iv) the parties hereto and the respective Mortgage Loan Sellers shall have no
rights or obligations with respect to the Loan REMICs, Loan REMIC Interests,
Class R-LR Certificates, Excess Defeasance Deposit Proceeds and/or Early
Defeasance Trust Mortgage Loans.
SECTION 2.07. Conveyance of Loan REMIC Regular Interests.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all the right, title and interest of the Depositor in and to the Loan REMIC
Regular Interests, if any, to the Trustee for the benefit of the Holders of the
Class R-I Certificates and REMIC II as the holder of the REMIC I Regular
Interests. The Trustee acknowledges the assignment to it of the Loan REMIC
Regular Interests, if any, and declares that it
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holds and will hold the same in trust for the exclusive use and benefit of all
present and future Holders of the Class R-I Certificates, the Class R-II
Certificates and the REMIC III Certificates.
SECTION 2.08. Execution, Authentication and Delivery of Class R-I
Certificates; Creation of REMIC I Regular Interests.
The Trustee hereby acknowledges the assignment to it of the assets
included in REMIC I. Concurrently with such assignment and in exchange therefor,
(a) the REMIC I Regular Interests have been issued, and (b) pursuant to the
written request of the Depositor executed by an authorized officer thereof, the
Trustee, as Certificate Registrar, has executed, and the Trustee, as
Authenticating Agent, has authenticated and delivered to or upon the order of
the Depositor, the Class R-I Certificates in authorized denominations. The
interests evidenced by the Class R-I Certificates, together with the REMIC I
Regular Interests, constitute the entire beneficial ownership of REMIC I. The
rights of the Class R-I Certificateholders and REMIC II (as holder of the REMIC
I Regular Interests) to receive distributions from the proceeds of REMIC I in
respect of the Class R-I Certificates and the REMIC I Regular Interests,
respectively, and all ownership interests evidenced or constituted by the Class
R-I Certificates and the REMIC I Regular Interests, shall be as set forth in
this Agreement.
SECTION 2.09. Conveyance of REMIC I Regular Interests; Acceptance of
REMIC II by Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all the right, title and interest of the Depositor in and to the REMIC I Regular
Interests to the Trustee for the benefit of the Holders of the Class R-II
Certificates and REMIC III as the holder of the REMIC II Regular Interests. The
Trustee acknowledges the assignment to it of the REMIC I Regular Interests and
declares that it holds and will hold the same in trust for the exclusive use and
benefit of all present and future Holders of the Class R-II Certificates and the
REMIC III Certificates.
SECTION 2.10. Execution, Authentication and Delivery of Class R-II
Certificates; Creation of REMIC II Regular Interests.
Concurrently with the assignment to the Trustee of the REMIC I Regular
Interests and in exchange therefor, (a) the REMIC II Regular Interests have been
issued and (b) pursuant to the written request of the Depositor executed by an
authorized officer thereof, the Trustee, as Certificate Registrar, has executed,
and the Trustee, as Authenticating Agent, has authenticated and delivered to or
upon the order of the Depositor, the Class R-II Certificates in authorized
denominations. The rights of the Class R-II Certificateholders and REMIC III (as
holder of the REMIC II Regular Interests) to receive distributions from the
proceeds of REMIC II in respect of the Class R-II Certificates and the REMIC II
Regular Interests, respectively, and all ownership interests evidenced or
constituted by the Class R-II Certificates and the REMIC II Regular Interests,
shall be as set forth in this Agreement.
SECTION 2.11. Conveyance of REMIC II Regular Interests; Acceptance of
REMIC III by Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all the right, title and interest of the Depositor in and to the REMIC II
Regular Interests to the Trustee for the benefit of the Holders of the REMIC III
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Certificates. The Trustee acknowledges the assignment to it of the REMIC II
Regular Interests and declares that it holds and will hold the same in trust for
the exclusive use and benefit of all present and future Holders of the REMIC III
Certificates.
SECTION 2.12. Execution, Authentication and Delivery of REMIC III
Certificates.
Concurrently with the assignment to the Trustee of the REMIC II
Regular Interests and in exchange therefor, pursuant to the written request of
the Depositor executed by an officer thereof, the Trustee, as Certificate
Registrar, has executed, and the Trustee, as Authenticating Agent, has
authenticated and delivered to or upon the order of the Depositor, the REMIC III
Certificates in authorized denominations evidencing the entire beneficial
ownership of REMIC III. The rights of the Holders of the respective Classes of
REMIC III Certificates to receive distributions from the proceeds of REMIC III
in respect of their REMIC III Certificates, and all ownership interests
evidenced or constituted by the respective Classes of REMIC III Certificates in
such distributions, shall be as set forth in this Agreement.
SECTION 2.13. Acceptance of Loss of Value Reserve Fund by Trustee.
It is the intention of the parties hereto that any Loss of Value
Payments Received by the Trust pursuant to Section 2.03(e), together with the
Loss of Value Reserve Fund, shall collectively constitute an "outside reserve
fund" within the meaning of Treasury regulation section 1.860G-2(h). The
Trustee, by execution and delivery hereof, acknowledges the assignment to it of
the assets consisting of the Loss of Value Reserve Fund, including the amounts
held therein, and declares that it holds and will hold such assets, through the
Special Servicer, in accordance with Section 3.04(e), in trust and for the
benefit of the Certificateholders, as their interests may appear.
Notwithstanding anything herein to the contrary, based on applicable law as of
the date hereof, for all income and franchise tax purposes, the Holder or
Holders of the Class R-III Certificates shall be treated and reported as the
sole beneficial owner(s) of the Loss of Value Reserve Fund.
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ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans.
(a) All of the Serviced Mortgage Loans and Administered REO Properties
are to be serviced and administered by the Master Servicer and/or the Special
Servicer hereunder. Each of the Master Servicer and the Special Servicer shall
service and administer the Serviced Mortgage Loans and Administered REO
Properties that it is obligated to service and administer pursuant to this
Agreement on behalf of the Trustee, for the benefit of the Certificateholders
(or, in the case of a Serviced Loan Combination, for the benefit of the
Certificateholders and the related Serviced Non-Trust Mortgage Loan
Noteholder(s)), as determined in the good faith and reasonable judgment of the
Master Servicer or the Special Servicer, as the case may be, in accordance with:
(i) any and all applicable laws; (ii) the express terms of this Agreement; (iii)
the express terms of the respective Serviced Mortgage Loans and any and all
related intercreditor, co-lender or similar agreements (including with respect
to performing the duties of the holders of the respective Serviced Mortgage
Loans thereunder (to the extent not inconsistent with this Agreement and to the
extent consistent with the Servicing Standard)); and (iv) to the extent
consistent with the foregoing, the Servicing Standard. The Master Servicer or
the Special Servicer, as applicable in accordance with this Agreement, shall
service and administer each Cross-Collateralized Group as a single Serviced
Mortgage Loan as and when necessary and appropriate consistent with the
Servicing Standard. Without limiting the foregoing and subject to Section 3.21,
(i) the Master Servicer shall service and administer all of the Performing
Serviced Mortgage Loans and shall render such services with respect to the
Specially Serviced Mortgage Loans as are specifically provided for herein, and
(ii) the Special Servicer shall service and administer each Specially Serviced
Mortgage Loan and Administered REO Property and shall render such services with
respect to Performing Serviced Mortgage Loans as are specifically provided for
herein. All references herein to the respective duties of the Master Servicer
and the Special Servicer, and to the areas in which they may exercise
discretion, shall be subject to Section 3.21.
(b) Subject to Sections 3.01(a), 3.20, 6.11 and 6.12, the Master
Servicer and the Special Servicer shall each have full power and authority,
acting alone (or, to the extent contemplated by Section 3.22 of this Agreement,
through subservicers), to do or cause to be done any and all things in
connection with the servicing and administration contemplated by Section 3.01(a)
that it may deem necessary or desirable. Without limiting the generality of the
foregoing, each of the Master Servicer and the Special Servicer, in its own
name, with respect to each of the Serviced Mortgage Loans it is obligated to
service hereunder, is authorized and empowered by the Trustee and, to the extent
provided in the related Co-Lender Agreement, each related Serviced Non-Trust
Mortgage Loan Noteholder (if any) to execute and deliver, on behalf of the
Certificateholders, the Trustee and such Serviced Non-Trust Mortgage Loan
Noteholder or any of them, (i) any and all financing statements, continuation
statements and other documents or instruments necessary to maintain the lien
created by any Mortgage or other security document in the related Mortgage File
on the related Mortgaged Property and related collateral; (ii) in accordance
with the Servicing Standard and subject to Sections 3.01(a), 3.20, 6.11 and
6.12, any and all modifications, extensions, waivers, amendments or consents to
or with respect to any documents contained in the related Mortgage File; (iii)
any and all instruments of satisfaction or cancellation, or of partial or full
release or discharge or of assignment, and all other comparable instruments; and
(iv) any
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and all instruments that such party may be required to execute on behalf of the
Trustee in connection with the defeasance of a Serviced Mortgage Loan as
contemplated in this Agreement. Subject to Section 3.10, the Trustee shall, at
the written request of the Master Servicer or the Special Servicer, promptly
execute any limited powers of attorney and other documents furnished by the
Master Servicer or the Special Servicer that are necessary or appropriate to
enable them to carry out their servicing and administrative duties hereunder;
provided, however, that the Trustee shall not be held liable for any misuse of
any such power of attorney by the Master Servicer or the Special Servicer.
Notwithstanding anything contained herein to the contrary, neither the Master
Servicer nor the Special Servicer shall, without the Trustee's written consent:
(i) initiate any action, suit or proceeding solely under the Trustee's name
without indicating the Master Servicer's or Special Servicer's, as applicable,
representative capacity; or (ii) take any action with the intent to cause, and
that actually causes, the Trustee to be registered to do business in any state.
(c) The parties hereto acknowledge that each Loan Combination is
subject to the terms and conditions of the related Co-Lender Agreement; and,
with respect to each Loan Combination, the parties hereto further recognize the
respective rights and obligations of the Trust, as holder of the related
Combination Trust Mortgage Loan, and of the related Non-Trust Mortgage Loan
Noteholder(s) under the related Co-Lender Agreement.
(d) With respect to any Serviced Loan Combination, in the event that
neither the related Trust Mortgage Loan nor the related REO Property (or any
interest therein) is an asset of the Trust Fund and, except as contemplated in
the second paragraph of this Section 3.01(d), in accordance with the related
Co-Lender Agreement, the servicing and administration of such Serviced Loan
Combination and any related REO Property are to be governed by a separate
servicing agreement and not by this Agreement, then (either (i) with the consent
or at the request of the holders of each Mortgage Loan comprising such Serviced
Loan Combination or (ii) if expressly provided for in the related Co-Lender
Agreement) the Master Servicer and, if such Serviced Loan Combination is then
being specially serviced hereunder or the related Mortgaged Property has become
an REO Property, the Special Servicer, shall continue to act in such capacities
under such separate servicing agreement; provided that such separate servicing
agreement shall be reasonably acceptable to the Master Servicer and/or the
Special Servicer, as the case may be, and shall contain servicing and
administration, limitation of liability, indemnification and servicing
compensation provisions substantially similar to the corresponding provisions of
this Agreement, except for the fact that such Serviced Loan Combination and the
related Mortgaged Property shall be the sole assets serviced and administered
thereunder and the sole source of funds thereunder.
Further, with respect to any Serviced Loan Combination, if at any time
neither the related Trust Mortgage Loan nor any related REO Property (or any
interest therein) is an asset of the Trust Fund, and if a separate servicing
agreement with respect to such Serviced Loan Combination or any related REO
Property, as applicable, has not been entered into as contemplated by the
related Co-Lender Agreement and the prior paragraph (for whatever reason,
including the failure to obtain any rating agency confirmation required in
connection therewith pursuant to the related Co-Lender Agreement), and
notwithstanding that neither the related Trust Mortgage Loan nor any related REO
Property (or any interest therein) is an asset of the Trust Fund, then, unless
directed otherwise by the then current holders of the Mortgage Notes comprising
such Serviced Loan Combination, the Master Servicer and, if applicable, the
Special Servicer shall continue to service and administer such Serviced
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Loan Combination and/or any related REO Property, for the benefit of the
respective holders of such Serviced Loan Combination, under this Agreement as if
such Serviced Loan Combination or any related REO Property were the sole assets
subject hereto, with certain references in this Agreement applicable to the
Trust, the Trustee, the Certificates, the Certificateholders (or any subgroup
thereof) or any representative of any such Certificateholders, all being
construed to refer to such similar terms as are applicable to the then current
holder of the Mortgage Note for the related Serviced Combination Trust Mortgage
Loan.
(e) The Master Servicer shall use efforts consistent with the
Servicing Standard to have prepared, executed (with the cooperation of the
Depositor (in the case of a Xxxxxx Trust Mortgage Loan) and the UBS Mortgage
Loan Seller (in the case of a UBS Trust Mortgage Loan) in obtaining requisite
signatures, if applicable) and delivered by the applicable party (and included
in the Servicing File), not later than the later of (i) 30 days following the
Master Servicer's receipt of the subject franchisor comfort letter, guaranty of
payment or letter of credit and (ii) the expiration of the period that may be
required for such transfer or assignment pursuant to the terms of the applicable
franchisor comfort letter, guaranty of payment or letter of credit, if any, (A)
with respect to any Serviced Mortgage Loan secured by a hospitality property (as
identified on Schedule VI hereto) (and with respect to which a franchise
agreement constitutes part of the related Mortgage File on the Closing Date),
any original transfer or assignment documents necessary to transfer or assign to
the Trustee any rights under the related franchisor comfort letter; and (B) with
respect to any Serviced Mortgage Loan that has a related guaranty or letter of
credit that constitutes part of the related Mortgage File on the Closing Date,
any original transfer or assignment documents necessary to transfer or assign to
the Trustee any rights under the related guaranty of payment or letter of
credit. In the event, with respect to a Serviced Trust Mortgage Loan with a
related letter of credit, it is determined by the Master Servicer that a draw
under such letter of credit has become necessary under the terms thereof prior
to the assignment under clause (B) of the preceding sentence having been
effected, the Master Servicer shall direct (in writing) the Depositor (in the
case of a Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in the
case of a UBS Trust Mortgage Loan) to make such draw or to cause such draw to be
made on behalf of the Trustee, and, the Depositor will, and the UBS Mortgage
Loan Seller will be obligated under the UBS/Depositor Mortgage Loan Purchase
Agreement to, use its best efforts to cause such draw to be made; provided that
neither the Depositor nor the UBS Mortgage Loan Seller shall have any liability
in connection with the determination to make, or the making of, such draw (other
than to remit the proceeds of such draw to the Master Servicer).
(f) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee, to the Serviced Non-Trust Mortgage Loan Noteholders and
to each other under this Agreement is intended by the parties to be that of an
independent contractor and not that of a joint venturer, partner or agent.
SECTION 3.02. Collection of Mortgage Loan Payments.
(a) Each of the Master Servicer and the Special Servicer shall
undertake reasonable efforts to collect all payments required under the terms
and provisions of the Serviced Mortgage Loans it is obligated to service
hereunder and shall follow such collection procedures as are consistent with the
Servicing Standard; provided, however, that neither the Master Servicer nor the
Special Servicer shall, with respect to any Serviced Mortgage Loan that
constitutes an ARD Mortgage Loan after its Anticipated Repayment Date, take any
enforcement action with respect to the payment of Additional Interest (other
than the making of requests for its collection), unless (i) the taking of an
enforcement action with respect to the payment of other amounts due under such
ARD Mortgage Loan is, in the good
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faith and reasonable judgment of the Special Servicer, necessary, appropriate
and consistent with the Servicing Standard or (ii) all other amounts due under
such ARD Mortgage Loan have been paid, the payment of such Additional Interest
has not been forgiven in accordance with Section 3.20 and, in the good faith and
reasonable judgment of the Special Servicer, the Liquidation Proceeds expected
to be recovered in connection with such enforcement action will cover the
anticipated costs of such enforcement action and, if applicable, any associated
interest accrued on Advances. The Special Servicer shall ensure that, with
respect to Specially Serviced Mortgage Loans, the Mortgagors make payments
directly to the Master Servicer; provided that, in the event the Special
Servicer receives a payment that should have been made directly to the Master
Servicer, the Special Servicer shall promptly forward such payment to the Master
Servicer. Upon receipt of any such payment with respect to a Specially Serviced
Mortgage Loan, the Master Servicer shall promptly notify the Special Servicer,
and the Special Servicer shall direct the Master Servicer as to the proper
posting of such payment. Consistent with the foregoing, the Special Servicer,
with regard to a Specially Serviced Mortgage Loan, or the Master Servicer, with
regard to a Performing Serviced Mortgage Loan, may waive or defer any Default
Charges in connection with collecting any late payment on a Serviced Mortgage
Loan; provided that without the consent of the Special Servicer in the case of a
proposed waiver by the Master Servicer, no such waiver or deferral may be made
by the Master Servicer pursuant to this Section 3.02 if any Advance has been
made as to such delinquent payment.
(b) All amounts Received by the Trust with respect to any
Cross-Collateralized Group in the form of payments from Mortgagors, Insurance
Proceeds, Condemnation Proceeds and Liquidation Proceeds, shall be applied by
the Master Servicer among the Trust Mortgage Loans constituting such
Cross-Collateralized Group in accordance with the express provisions of the
related loan documents and, in the absence of such express provisions or to the
extent that such payments and other collections may be applied at the discretion
of the lender, on a pro rata basis in accordance with the respective amounts
then "due and owing" as to each such Mortgage Loan. Except as otherwise
contemplated by the following paragraphs in this Section 3.02(b), all amounts
Received by the Trust in respect of or allocable to any particular Trust
Mortgage Loan (whether or not such Trust Mortgage Loan constitutes part of a
Cross-Collateralized Group) in the form of payments from Mortgagors, Liquidation
Proceeds, Condemnation Proceeds or Insurance Proceeds shall be applied to
amounts due and owing under such Trust Mortgage Loan (including for principal
and accrued and unpaid interest) in accordance with the express provisions of
the related Mortgage Note, the related Mortgage and/or any related loan
agreement and, in the absence of such express provisions or to the extent that
such payments and other collections may be applied at the discretion of the
lender, as follows: first, as a recovery of any related unpaid servicing
expenses and unreimbursed Servicing Advances; second, as a recovery of accrued
and unpaid interest on such Trust Mortgage Loan at the related Mortgage Rate
(net, in the case of an Outside Serviced Trust Mortgage Loan, of related Outside
Servicing Fees) 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),
exclusive, however, in the case of an ARD Trust Mortgage Loan after its
Anticipated Repayment Date, of any such accrued and unpaid interest that
constitutes Additional Interest; third, as a recovery of principal of such Trust
Mortgage Loan then due and owing, including by reason of acceleration of such
Trust Mortgage Loan following a default thereunder (or, if a Liquidation Event
has occurred in respect of such Trust Mortgage Loan, as a recovery of principal
to the extent of its entire remaining unpaid principal balance); fourth, unless
a Liquidation Event has occurred with respect to such Trust Mortgage Loan, as a
recovery of amounts to be currently applied to the payment of, or escrowed for
the future payment of, real estate taxes, assessments, insurance premiums
(including premiums on any Environmental Insurance Policy), ground rents (if
applicable) and similar items; fifth, unless a
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Liquidation Event has occurred with respect to such Trust Mortgage Loan, as a
recovery of Reserve Funds to the extent then required to be held in escrow;
sixth, as a recovery of any Prepayment Consideration then due and owing under
such Trust Mortgage Loan; seventh, as a recovery of any Default Charges then due
and owing under such Trust Mortgage Loan; eighth, as a recovery of any
assumption fees, modification fees and extension fees then due and owing under
such Trust Mortgage Loan; ninth, as a recovery of any other amounts then due and
owing under such Trust Mortgage Loan (other than remaining unpaid principal and,
in the case of an ARD Trust Mortgage Loan after its Anticipated Repayment Date,
other than Additional Interest); tenth, as a recovery of any remaining principal
of such Trust Mortgage Loan to the extent of its entire remaining unpaid
principal balance; and, eleventh, in the case of an ARD Trust Mortgage Loan
after its Anticipated Repayment Date, as a recovery of accrued and unpaid
Additional Interest on such ARD Trust Mortgage Loan to but not including the
date of receipt; provided that, if one or more Advances previously made in
respect of a Trust Mortgage Loan have been reimbursed out of general collections
of principal on the Mortgage Pool as one or more Nonrecoverable Advances, then
collections in respect of such Trust Mortgage Loan available for application
pursuant to clauses second through eleventh of this sentence shall instead be
applied in the following order--(i) as a recovery of accrued and unpaid interest
on, and principal of, such Trust Mortgage Loan, to the extent of any outstanding
P&I Advances and unpaid Master Servicing Fees in respect of such Trust Mortgage
Loan, (ii) as a recovery of the item(s) for which such previously reimbursed
Nonrecoverable Advance(s) were made (together with, but only if a Liquidation
Event has occurred with respect to such Trust Mortgage Loan, any interest on
such previously reimbursed Nonrecoverable Advance(s) that was also paid out of
general collections of principal on the Mortgage Pool), and (iii) in accordance
with clauses second through eleventh of this sentence (taking into account the
applications pursuant to clauses (i) and (ii) of this proviso).
Subject to the last paragraph of this Section 3.02(b), all amounts
received with respect to any Serviced Loan Combination shall be applied to
amounts due and owing under the Mortgage Loans comprising such Loan Combination
(including for principal and accrued and unpaid interest) in accordance with the
express provisions of the related Mortgage Notes, the related Mortgage, the
related loan agreement, if any, and the related Co-Lender Agreement.
Subject to the last paragraph of this Section 3.02(b), all amounts
Received by the Trust with respect to an Outside Serviced Trust Mortgage Loan
shall be allocated among interest, principal and/or prepayment consideration due
thereon in accordance with the terms of any distribution date statement or
servicer report received from the related Outside Servicers with respect to such
Outside Serviced Trust Mortgage Loan and, in the absence of any such statement
or report, in accordance with the related Co-Lender Agreement and, in the
absence of any allocation in the related Co-Lender Agreement, in accordance with
the first paragraph of this Section 3.02(b). Any nonrecoverable payment made by
an Outside Servicer to cover interest shortfalls incurred with respect to an
Outside Serviced Trust Mortgage Loan by reason of a Principal Prepayment or
other early collection of principal being applied to such Outside Serviced Trust
Mortgage Loan prior to the related Due Date during the relevant Underlying
Collection Period, will be treated for purposes of this Agreement as if it was a
payment of interest by the related Mortgagor.
Notwithstanding the foregoing, Loss of Value Payments shall not be
applied in accordance with the foregoing provisions of this Section 3.02(b)
unless and until such amounts are transferred to the Pool Custodial Account, and
deemed to constitute Liquidation Proceeds in respect of a particular Trust
Mortgage Loan, in accordance with Section 3.05(e); and Liquidation Proceeds
resulting
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from any purchase or repurchase out of the Trust Fund of, or any application of
Loss of Value Payments to, any Trust Mortgage Loan that is part of a Loan
Combination shall be applied in accordance with the provisions of the first
paragraph of this Section 3.02(b).
(c) Promptly following the Closing Date, in the case of each Outside
Serviced Trust Mortgage Loan, the Trustee shall send written notice,
substantially in the form of Exhibit S hereto, to the related Outside Master
Servicer, stating that, as of the Closing Date, the Trustee is the holder of
such Outside Serviced Trust Mortgage Loan and directing the related Outside
Master Servicer to remit to the Master Servicer all amounts payable to, and to
forward, deliver or otherwise make available, as the case may be, to the Master
Servicer all reports, statements, documents, communications and other
information that are to be forwarded, delivered or otherwise made available to,
the holder of the subject Outside Serviced Trust Mortgage Loan under the related
Co-Lender Agreement and the related Outside Servicing Agreement. The Master
Servicer shall, within one (1) Business Day of receipt thereof, deposit into the
Pool Custodial Account all amounts received by it from any Outside Servicer or
any other party under the related Outside Servicing Agreement and/or the related
Co-Lender Agreement with respect to any Outside Serviced Trust Mortgage Loan,
the related Mortgaged Property or any related REO Property. In connection with
the foregoing, the Master Servicer shall provide each Outside Master Servicer
wiring instructions for remittances to the Master Servicer. In the event that,
during any calendar month, the Master Servicer fails to so receive any amounts,
including advances, due to the holder of an Outside Serviced Trust Mortgage Loan
under the related Co-Lender Agreement and/or the related Outside Servicing
Agreement by the end of the related Collection Period ending in such calendar
month, then the Master Servicer shall promptly (i) notify the related Outside
Master Servicer and any related Outside Trustee that such amounts due with
respect to the subject Outside Serviced Trust Mortgage Loan or any successor REO
Trust Mortgage Loan with respect thereto have not been received (specifying the
amount of such deficiency), (ii) make inquiry of the related Outside Master
Servicer and any related Outside Trustee (and, to the extent learned, inform the
Trustee) as to the reason that such amounts have not been timely received, (iii)
as and to the extent appropriate, request that the related Outside Master
Servicer promptly remedy such failure to make a payment or an advance, as the
case may be, and (iv) make a P&I Advance with respect to such amounts as and if
required by the terms of this Agreement in accordance with Section 4.03.
Further, in accordance with Section 4.03, in the event the Master Servicer fails
to make such P&I Advance with respect to any Outside Serviced Trust Mortgage
Loan or any successor REO Trust Mortgage Loan with respect thereto, then the
Trustee or, if it fails to do so, the Fiscal Agent, shall make such P&I Advance.
SECTION 3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts.
(a) The Master Servicer shall, as to all Serviced Mortgage Loans,
establish and maintain one or more accounts (the "Servicing Accounts"), in which
all related Escrow Payments shall be deposited and retained; provided that, in
the case of a Serviced Loan Combination, if the related Servicing Account
includes funds with respect to any other Serviced Mortgage Loan, then the Master
Servicer shall maintain a separate sub-account of such Servicing Account that
relates solely to such Serviced Loan Combination. Subject to the terms of the
related loan documents, each Servicing Account shall be an Eligible Account.
Withdrawals of amounts so collected from a Servicing Account may be made (in
each case, to the extent of amounts on deposit therein in respect of the related
Serviced Mortgage Loan or, in the case of clauses (iv) and (v) below, to the
extent of interest or other income earned on such amounts) only for the
following purposes: (i) consistent with the related loan
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documents, to effect the payment of real estate taxes, assessments, insurance
premiums (including premiums on any Environmental Insurance Policy), ground
rents (if applicable) and comparable items in respect of the respective
Mortgaged Properties; (ii) insofar as the particular Escrow Payment represents a
late payment that was intended to cover an item described in the immediately
preceding clause (i) for which a Servicing Advance was made, to reimburse the
Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent, as
applicable, for such Servicing Advance; (iii) to refund to Mortgagors any sums
as may be determined to be overages; (iv) following an event of default under
the related Serviced Mortgage Loan, for such other purposes as are consistent
with the related loan documents, applicable law and the Servicing Standard; (v)
to pay interest, if required and as described below, to Mortgagors on balances
in such Servicing Account; (vi) to pay the Master Servicer interest and
investment income on balances in such Servicing Account as described in Section
3.06, if and to the extent not required by law or the terms of the related loan
documents to be paid to the Mortgagor; or (vii) to clear and terminate such
Servicing Account at the termination of this Agreement in accordance with
Section 9.01. To the extent permitted by law or the applicable loan documents,
funds in the Servicing Accounts may be invested only in Permitted Investments in
accordance with the provisions of Section 3.06. The Master Servicer shall pay or
cause to be paid to the Mortgagors interest, if any, earned on the investment of
funds in the related Servicing Accounts, if required by law or the terms of the
related Serviced Mortgage Loan. If the Master Servicer shall deposit in a
Servicing Account any amount not required to be deposited therein, it may at any
time withdraw such amount from such Servicing Account, any provision herein to
the contrary notwithstanding.
(b) The Master Servicer shall, as to each and every Serviced Mortgage
Loan, (i) maintain accurate records with respect to the related Mortgaged
Property reflecting the status of real estate taxes, assessments and other
similar items that are or may become a lien thereon and the status of insurance
premiums and any ground rents payable in respect thereof and (ii) use reasonable
efforts to obtain, from time to time, all bills for (or otherwise confirm) the
payment of such items (including renewal premiums) and, if the subject Serviced
Mortgage Loan requires the related Mortgagor to escrow for such items, shall
effect payment thereof prior to the applicable penalty or termination date. For
purposes of effecting any such payment for which it is responsible, the Master
Servicer shall apply Escrow Payments as allowed under the terms of the related
Serviced Mortgage Loan (or, if such Serviced Mortgage Loan does not require the
related Mortgagor to escrow for the payment of real estate taxes, assessments,
insurance premiums, ground rents (if applicable) and similar items, the Master
Servicer shall use reasonable efforts consistent with the Servicing Standard to
cause the related Mortgagor to comply with the requirement of the related
Mortgage that the Mortgagor make payments in respect of such items at the time
they first become due and, in any event, prior to the institution of foreclosure
or similar proceedings with respect to the related Mortgaged Property for
nonpayment of such items). Subject to Section 3.11(h), the Master Servicer shall
timely make a Servicing Advance to cover any such item which is not so paid,
including any penalties or other charges arising from the Mortgagor's failure to
timely pay such items.
(c) The Master Servicer shall, as to each and every Serviced Mortgage
Loan, make a Servicing Advance with respect to the related Mortgaged Property in
an amount equal to all such funds as are necessary for the purpose of effecting
the payment of (i) real estate taxes, assessments and other similar items, (ii)
ground rents (if applicable), and (iii) premiums on Insurance Policies
(including Environmental Insurance Policies), in each instance if and to the
extent Escrow Payments (if any) collected from the related Mortgagor are
insufficient to pay such item when due and the related Mortgagor (or any related
guarantor or party entitled to exercise cure rights) has failed to pay such item
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on a timely basis. All such Servicing Advances shall be reimbursable in the
first instance from related payments by or on behalf of the Mortgagors, and
further as provided in Section 3.05(a) and/or Section 3.05A. No costs incurred
by the Master Servicer in effecting the payment of real estate taxes,
assessments and, if applicable, ground rents on or in respect of the Mortgaged
Properties shall, for purposes of this Agreement, including the Trustee's
calculation of monthly distributions to Certificateholders, be added to the
unpaid Stated Principal Balances of the related Serviced Mortgage Loans,
notwithstanding that the terms of such Mortgage Loans so permit. The foregoing
shall in no way limit the Master Servicer's ability to charge and collect from
the Mortgagor such costs together with interest thereon.
(d) The Master Servicer shall, as to all Serviced Mortgage Loans,
establish and maintain, as applicable, one or more accounts (the "Reserve
Accounts"), into which all related Reserve Funds, if any, shall be deposited and
retained; provided that, in the case of a Serviced Loan Combination, if the
related Reserve Account includes funds with respect to any other Mortgage Loan,
then the Master Servicer shall maintain a separate sub-account of such Reserve
Account that relates solely to such Serviced Loan Combination. Withdrawals of
amounts so deposited may be made (i) for the specific purposes for which the
particular Reserve Funds were delivered, in accordance with the Servicing
Standard and the terms of the related Mortgage Note, Mortgage and any other
agreement with the related Mortgagor governing such Reserve Funds, (ii) to pay
the Master Servicer interest and investment income earned on amounts in the
Reserve Accounts as described below, and (iii) following an event of default
under the related Serviced Mortgage Loan, for such other purposes as are
consistent with the related loan documents, applicable law and the Servicing
Standard. To the extent permitted in the applicable loan documents, funds in the
Reserve Accounts may be invested in Permitted Investments in accordance with the
provisions of Section 3.06. Subject to the related loan documents, all Reserve
Accounts shall be Eligible Accounts. Consistent with the Servicing Standard, the
Master Servicer may waive or extend the date set forth in any agreement
governing Reserve Funds by which any required repairs, capital improvements
and/or environmental remediation at the related Mortgaged Property must be
completed; provided that any waiver, any extension for more than 120 days and
any subsequent extension may only be granted with the consent of the Special
Servicer.
SECTION 3.04. Pool Custodial Account, Defeasance Deposit Account,
Collection Account, Interest Reserve Account, Excess
Liquidation Proceeds Account and Loss of Value Reserve
Fund.
(a) The Master Servicer shall establish and maintain one or more
separate accounts (collectively, the "Pool Custodial Account"), in which the
amounts described in clauses (i) through (xi) below (which shall not include any
amounts allocable to the Non-Trust Mortgage Loans) shall be deposited and held
on behalf of the Trustee in trust for the benefit of the Certificateholders. The
Pool Custodial Account shall be an Eligible Account. The Master Servicer shall
deposit or cause to be deposited in the Pool Custodial Account, within one (1)
Business Day of receipt (in the case of payments by Mortgagors or other
collections on the Trust Mortgage Loans) or as otherwise required hereunder, the
following payments and collections received (including amounts Received by the
Trust with respect to the Outside Serviced Trust Mortgage Loans and/or any
successor REO Trust Mortgage Loans with respect thereto) or made by the Master
Servicer or on its behalf subsequent to the Cut-off Date (other than in respect
of principal and interest on the Trust Mortgage Loans due and payable on or
before the Cut-off Date, which amounts shall be delivered promptly to the
Depositor or its designee, with negotiable instruments endorsed as necessary and
appropriate without recourse, and other than
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amounts required to be deposited in the Defeasance Deposit Account), or any of
the following payments (other than Principal Prepayments) received by it on or
prior to the Cut-off Date but allocable to a period subsequent thereto:
(i) all payments on account of principal of the Serviced Trust
Mortgage Loans, including Principal Prepayments, and regardless of whether
those payments are made by the related Mortgagor, any related guarantor or
any party exercising cure rights under any related co-lender, intercreditor
or similar agreement, out of any related Reserve Funds maintained for such
purpose, out of collections on any related Defeasance Collateral or from
any other source;
(ii) all payments on account of interest on the Serviced Trust
Mortgage Loans, including Default Interest and Additional Interest, and
regardless of whether those payments are made by the related Mortgagor, any
related guarantor or any party exercising cure rights under any related
co-lender, intercreditor or similar agreement, out of any related Reserve
Funds maintained for such purpose, out of collections on any related
Defeasance Collateral or from any other source;
(iii) all Prepayment Consideration and late payment charges
Received by the Trust in respect of any Trust Mortgage Loan;
(iv) all Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds Received by the Trust in respect of any Trust Mortgage
Loan or, except to the extent such proceeds are to first be deposited in an
REO Account, any REO Property;
(v) any amounts representing a reimbursement, payment and/or
contribution due and owing to the Trust from any Non-Trust Mortgage Loan
Noteholder in accordance with the related Co-Lender Agreement;
(vi) all remittances to the Trust under the related Outside
Servicing Agreement and/or the related Co-Lender Agreement with respect to
each Outside Serviced Trust Mortgage Loan or any successor REO Trust
Mortgage Loan with respect thereto;
(vii) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect to
Permitted Investments of funds held in the Pool Custodial Account;
(viii) any amounts required to be deposited by the Master
Servicer or the Special Servicer pursuant to Section 3.07(b) in connection
with losses on the Mortgage Pool resulting from a deductible clause in a
blanket or master force placed hazard insurance policy;
(ix) any amounts required to be transferred from the Loss of
Value Reserve Fund pursuant to Section 3.05(e), any Loan Combination
Custodial Account pursuant to Section 3.05A or the Pool REO Account
pursuant to Section 3.16(c);
(x) insofar as they do not constitute Escrow Payments, any
amounts paid by a Mortgagor with respect to a Serviced Trust Mortgage Loan
specifically to cover items for which a Servicing Advance has been made;
and
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(xi) the Initial Deposits, if any;
provided that any amounts described in clauses (i) through (iv), (viii) and (x)
above that relate to a Serviced Combination Trust Mortgage Loan or any successor
REO Trust Mortgage Loan with respect thereto (other than Liquidation Proceeds
derived from the Permitted Purchase of such Trust Mortgage Loan or the Trust's
interest in any related REO Property) shall be deposited in the applicable Loan
Combination Custodial Account, and, in any such case, shall thereafter be
transferred to the Pool Custodial Account as provided in Section 3.05A, together
with any other amounts required to be transferred from such Loan Combination
Custodial Account to the Pool Custodial Account from time to time pursuant to
Section 3.05A.
The foregoing requirements for deposit in the Pool Custodial Account
shall be exclusive. Notwithstanding the foregoing, actual payments from
Mortgagors in the nature of Escrow Payments, Reserve Funds, assumption fees,
assumption application fees, funds representing a Mortgagor's payment of costs
and expenses associated with assumptions and defeasance, modification fees,
extension fees, charges for beneficiary statements or demands, amounts collected
for checks returned for insufficient funds and any similar fees (other than
Prepayment Consideration) not expressly referred to in the prior paragraph need
not be deposited by the Master Servicer in the Pool Custodial Account. If the
Master Servicer shall deposit in the Pool Custodial Account any amount not
required to be deposited therein, it may at any time withdraw such amount from
the Pool Custodial Account, any provision herein to the contrary
notwithstanding. The Master Servicer shall promptly deliver to the Special
Servicer, as additional special servicing compensation in accordance with
Section 3.11(d), all assumption fees and assumption application fees (or the
applicable portions thereof), and other transaction fees received by the Master
Servicer to which the Special Servicer is entitled pursuant to such section upon
receipt of a written statement (on which the Master Servicer is entitled to
rely) of a Servicing Officer of the Special Servicer describing the item and
amount (unless pursuant to this Agreement it is otherwise clear that the Special
Servicer is entitled to such amounts, in which case a written statement is not
required). The Pool Custodial Account shall be maintained as a segregated
account, separate and apart from trust funds created for mortgage-backed
securities of other series and the other accounts of the Master Servicer.
Upon receipt of any of the amounts described in clauses (i) through
(v) and (x) of the second preceding paragraph with respect to any Serviced Trust
Mortgage Loan, the Special Servicer shall promptly, but in no event later than
two (2) Business Days after receipt, remit such amounts to the Master Servicer
for deposit into the Pool Custodial Account in accordance with the second
preceding paragraph (or, if applicable, in the case of a Serviced Combination
Trust Mortgage Loan, into the applicable Loan Combination Custodial Account in
accordance with Section 3.04A(a) and the proviso to the second preceding
paragraph), unless the Special Servicer determines, consistent with the
Servicing Standard, that a particular item should not be deposited because of a
restrictive endorsement or other appropriate reason. With respect to any such
amounts paid by check to the order of the Special Servicer, the Special Servicer
shall endorse such check to the order of the Master Servicer, unless the Special
Servicer determines, consistent with the Servicing Standard, that a particular
item cannot be so endorsed and delivered because of a restrictive endorsement or
other appropriate reason. Any such amounts received by the Special Servicer with
respect to an Administered REO Property (other than an Administered REO Property
that relates to a Serviced Loan Combination) shall be deposited by the Special
Servicer into the Pool REO Account and thereafter remitted to the Master
Servicer for deposit into the Pool Custodial Account as and to the extent
provided in Section 3.16(c).
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If and when any Mortgagor under any Defeasance Mortgage Loan that is
also a Serviced Mortgage Loan elects to defease all or any part of its Serviced
Mortgage Loan and, pursuant to the provisions of the related loan documents,
delivers cash to the Master Servicer to purchase the required Defeasance
Collateral, the Master Servicer shall establish and maintain one or more
separate segregated accounts (collectively, the "Defeasance Deposit Account"),
in which the Master Servicer shall deposit such cash within one (1) Business Day
of receipt by the Master Servicer. The Master Servicer shall retain such cash in
the Defeasance Deposit Account pending its prompt application to purchase
Defeasance Collateral. The Master Servicer shall hold such cash and maintain the
Defeasance Deposit Account on behalf of the Trustee and, in the case of a
Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan
Noteholder(s), to secure payment on the related Defeasance Mortgage Loan. The
Defeasance Deposit Account shall be an Eligible Account. To the extent permitted
by law or the applicable Defeasance Mortgage Loan, prior to the purchase of
Defeasance Collateral, funds in the Defeasance Deposit Account may be invested
only in Permitted Investments in accordance with the provisions of Section 3.06.
The Master Servicer shall pay or cause to be paid to the related Mortgagor(s)
interest, if any, earned on the investment of funds in the Defeasance Deposit
Account, if required by law or the terms of the related Defeasance Mortgage
Loan(s).
Notwithstanding the foregoing, in the event that the Master Servicer
receives cash to purchase Defeasance Collateral for any Early Defeasance Trust
Mortgage Loan that the Depositor or the UBS Mortgage Loan Seller, as applicable,
is required to repurchase pursuant to or as otherwise contemplated by Section
2.03(j), the Master Servicer shall retain such cash in the Defeasance Deposit
Account on behalf of the Trust Fund until the Depositor or the UBS Mortgage Loan
Seller, as applicable, tenders the full Purchase Price in connection with such
repurchase and shall, on the date of such repurchase, transfer such cash to the
Depositor or the UBS Mortgage Loan Seller, as applicable.
(b) The Trustee shall establish and maintain one or more trust
accounts (collectively, the "Collection Account") to be held in trust for the
benefit of the Certificateholders. Each account that constitutes the Collection
Account shall be an Eligible Account. Subject to Section 2.05(b), the Trustee
shall establish and maintain, on a book-entry basis, the Class V Sub-Account,
which sub-account shall be deemed to be held in trust for the benefit of the
Holders of the Class V Certificates. The Master Servicer shall deliver to the
Trustee each month on or before the Trust Master Servicer Remittance Date
therein, for deposit in the Collection Account, an aggregate amount of
immediately available funds equal to the Master Servicer Remittance Amount for
such Trust Master Servicer Remittance Date, together with, in the case of the
Final Distribution Date, any additional amounts contemplated by the second
paragraph of Section 9.01 and any Loss of Value Payments contemplated by Section
3.05(e). Immediately upon deposit of the Master Servicer Remittance Amount for
any Trust Master Servicer Remittance Date into the Collection Account, subject
to Section 2.05(b), any portion thereof that represents Additional Interest
shall be deemed to have been deposited into the Class V Sub-Account.
In addition, the Master Servicer shall, as and when required
hereunder, deliver to the Trustee (without duplication) for deposit in the
Collection Account:
(i) any P&I Advances required to be made by the Master Servicer
in accordance with Section 4.03(a); and
(ii) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.19(a) in connection with Prepayment Interest
Shortfalls.
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The Trustee shall, upon receipt, deposit in the Collection Account any
and all amounts received by it that are required by the terms of this Agreement
to be deposited therein. In addition, as and when required pursuant to Section
3.06, the Trustee shall (in all cases prior to distributions on the Certificates
being made on the related Distribution Date) deposit in the Collection Account
any amounts required to be so deposited by the Trustee pursuant to Section 3.06
in connection with losses incurred with respect to Permitted Investments of
funds held in the Collection Account.
In the event that the Master Servicer fails, on any Trust Master
Servicer Remittance Date, to remit to the Trustee any amount(s) required to be
so remitted to the Trustee hereunder by such date, the Master Servicer shall pay
the Trustee, for the account of the Trustee, interest, calculated at the Prime
Rate, on such amount(s) not timely remitted, from and including that Trust
Master Servicer Remittance Date, to but not including the related Distribution
Date.
On the Trust Master Servicer Remittance Date in March of each year
(commencing in March 2006), the Trustee shall transfer from the Interest Reserve
Account to the Collection Account all Interest Reserve Amounts then on deposit
in the Interest Reserve Account with respect to the Interest Reserve Mortgage
Loans and any Interest Reserve REO Mortgage Loans.
As and when required pursuant to Section 3.05(d), the Trustee shall
transfer monies from the Excess Liquidation Proceeds Account to the Collection
Account.
(c) The Trustee shall establish and maintain one or more accounts
(collectively, the "Interest Reserve Account"), to be held in trust for the
benefit of the Certificateholders, for purposes of holding the Interest Reserve
Amounts in respect of the Interest Reserve Mortgage Loans and any Interest
Reserve REO Mortgage Loans. Each account that constitutes the Interest Reserve
Account shall be an Eligible Account. On each Distribution Date in February and,
during a year that is not a leap year, in January, commencing in January 2006,
prior to any distributions being made in respect of the Certificates on the
subject Distribution Date, the Trustee shall withdraw from the Collection
Account and deposit in the Interest Reserve Account with respect to each
Interest Reserve Mortgage Loan and Interest Reserve REO Mortgage Loan, an amount
equal to the Interest Reserve Amount, if any, in respect of such Mortgage Loan
or REO Mortgage Loan, as the case may be, for such Distribution Date; provided
that no such transfer of funds shall occur if the subject Distribution Date is
the Final Distribution Date. In addition, as and when required pursuant to
Section 3.06, the Trustee shall (in any event prior to any distributions on the
Certificates and any transfers to the Collection Account on or before the
related Distribution Date) deposit in the Interest Reserve Account any amounts
required to be so deposited by the Trustee pursuant to Section 3.06 in
connection with losses incurred with respect to Permitted Investments of funds
held in the Interest Reserve Account. Subject to the next paragraph, the
Interest Reserve Account may be a sub-account of the Collection Account.
Notwithstanding that the Interest Reserve Account may be a sub-account
of the Collection Account for reasons of administrative convenience, the
Interest Reserve Account and the Collection Account shall, for all purposes of
this Agreement (including the obligations and responsibilities of the Trustee
hereunder), be considered to be and shall be required to be treated as, separate
and distinct accounts. The Trustee shall indemnify and hold harmless the Trust
Fund against any losses arising out of the failure by the Trustee to perform its
duties and obligations hereunder as if such accounts were separate accounts. The
provisions of this paragraph shall survive any resignation or removal of the
Trustee and appointment of a successor trustee.
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(d) If any Excess Liquidation Proceeds are received on the Mortgage
Pool, the Trustee shall establish and maintain one or more accounts
(collectively, the "Excess Liquidation Proceeds Account") to be held in trust
for the benefit of the Certificateholders, for purposes of holding such Excess
Liquidation Proceeds. Each account that constitutes the Excess Liquidation
Proceeds Account shall be an Eligible Account. On each Trust Master Servicer
Remittance Date, the Master Servicer shall withdraw from the Pool Custodial
Account and remit to the Trustee for deposit in the Excess Liquidation Proceeds
Account all Excess Liquidation Proceeds received with respect to the Mortgage
Pool during the related Collection Period ending in the calendar month in which
such Trust Master Servicer Remittance Date occurs. In addition, as and when
required pursuant to Section 3.06, the Trustee shall (in any event prior to any
transfers to the Collection Account on or before the related Distribution Date)
deposit in the Excess Liquidation Proceeds Account any amounts required to be so
deposited by the Trustee pursuant to Section 3.06 in connection with losses
incurred with respect to Permitted Investments of funds held in the Excess
Liquidation Proceeds Account. Subject to the next paragraph, the Excess
Liquidation Proceeds Account may be a sub-account of the Collection Account.
Notwithstanding that the Excess Liquidation Proceeds Account may be a
sub-account of the Collection Account for reasons of administrative convenience,
the Excess Liquidation Proceeds Account and the Collection Account shall, for
all purposes of this Agreement (including the obligations and responsibilities
of the Trustee hereunder), be considered to be and shall be required to be
treated as, separate and distinct accounts. The Trustee shall indemnify and hold
harmless the Trust Fund against any losses arising out of the failure by the
Trustee to perform its duties and obligations hereunder as if such accounts were
separate accounts. The provisions of this paragraph shall survive any
resignation or removal of the Trustee and appointment of a successor trustee.
(e) If any Loss of Value Payments are received in connection with a
Material Document Defect or Material Breach, as the case may be, pursuant to or
as contemplated by Section 2.03(e), the Special Servicer shall establish and
maintain one or more non-interest bearing accounts (collectively, the "Loss of
Value Reserve Fund") to be held in trust for the benefit of the
Certificateholders, for purposes of holding such Loss of Value Payments. Each
account that constitutes the Loss of Value Reserve Fund shall be an Eligible
Account. The Special Servicer shall, upon receipt, deposit in the Loss of Value
Reserve Fund all Loss of Value Payments received by it.
(f) Funds (other than the Initial Deposits) in the Pool Custodial
Account, the Collection Account, the Interest Reserve Account and the Excess
Liquidation Proceeds Account may be invested only in Permitted Investments in
accordance with the provisions of Section 3.06. Funds in the Loss of Value
Reserve Fund shall remain uninvested. The Master Servicer shall give notice to
the Trustee, the Special Servicer and the Rating Agencies of the location of the
Pool Custodial Account as of the Closing Date and of the new location of the
Pool Custodial Account prior to any change thereof. As of the Closing Date, the
Collection Account, the Interest Reserve Account and the Excess Liquidation
Proceeds Account shall be located at the Trustee's Corporate Trust Office. The
Trustee shall give notice to the Master Servicer, the Special Servicer and the
Rating Agencies of any change in the location of the Collection Account, the
Interest Reserve Account or the Excess Liquidation Proceeds Account prior to any
change thereof.
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SECTION 3.04A. Loan Combination Custodial Accounts for Serviced Loan
Combinations.
(a) With respect to each Serviced Loan Combination, the Master
Servicer shall establish and maintain one or more separate accounts
(collectively, with respect to such Serviced Loan Combination, the related "Loan
Combination Custodial Account") in which the amounts described in clauses (i)
through (ix) below, insofar as they are related to one or more Mortgage Loans
included in such Serviced Loan Combination, shall be deposited and held in trust
for the benefit of the holders of such Mortgage Loans, as their interests may
appear; provided that, subject to the last paragraph of this Section 3.04A(a),
each Loan Combination Custodial Account may be a sub-account of the Pool
Custodial Account. Each Loan Combination Custodial Account shall be an Eligible
Account or, subject to the last paragraph of this Section 3.04A(a), a
sub-account of an Eligible Account. The Master Servicer shall deposit or cause
to be deposited in each Loan Combination Custodial Account, within one (1)
Business Day of receipt (in the case of payments or other collections on the
related Serviced Loan Combination) or as otherwise required hereunder, the
following payments and collections received or made by the Master Servicer or on
its behalf with respect to the related Serviced Loan Combination subsequent to
the Cut-off Date (other than in respect of principal and interest on such
Serviced Loan Combination due and payable on or before the Cut-off Date, which
payments shall be held pursuant to the terms of the related Co-Lender Agreement,
and other than amounts required to be deposited in the Defeasance Deposit
Account):
(i) all payments on account of principal of the related Serviced
Loan Combination, including Principal Prepayments, and regardless of
whether those payments are made by the related Mortgagor, any related
guarantor or any party exercising any cure rights under the related
Co-Lender Agreement or any related mezzanine intercreditor agreement, out
of any related Reserve Funds maintained for such purpose, out of
collections on any related Defeasance Collateral or from any other source;
(ii) all payments on account of interest on the related Serviced
Loan Combination, including Default Interest, and regardless of whether
those payments are made by the related Mortgagor, any related guarantor, or
any party exercising any cure rights under the related Co-Lender Agreement
or any related mezzanine intercreditor agreement, out of any related
Reserve Funds maintained for such purpose, out of collections on any
related Defeasance Collateral or from any other source;
(iii) all Prepayment Consideration and/or late payment charges
received in respect of the related Serviced Loan Combination;
(iv) all Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received in respect of the related Serviced Loan
Combination or, except to the extent such proceeds are to first be
deposited in a Loan Combination REO Account, any related Administered REO
Property;
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect to
Permitted Investments of funds held in such Loan Combination Custodial
Account;
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(vi) any amounts required to be deposited by the Master Servicer
or the Special Servicer pursuant to Section 3.07(b) in connection with
losses with respect to the related Serviced Loan Combination resulting from
a deductible clause in a blanket or master force placed hazard insurance
policy;
(vii) any amounts required to be transferred from the Loan
Combination REO Account established with respect to the related Serviced
Loan Combination pursuant to Section 3.16(c);
(viii) insofar as they do not constitute Escrow Payments, any
amounts paid by the related Mortgagor with respect to the related Serviced
Loan Combination specifically to cover items for which a Servicing Advance
has been made; and
(ix) any amounts representing a reimbursement, payment and/or
contribution due and owing to a party other than the Trust from any related
Non-Trust Mortgage Loan Noteholder in accordance with the related Co-Lender
Agreement;
provided that, with respect to a Serviced Loan Combination, any Liquidation
Proceeds derived from a Permitted Purchase of the Trust Mortgage Loan included
in such Serviced Loan Combination or the Trust's interest in any related REO
Property, shall in each case be deposited into the Pool Custodial Account.
The foregoing requirements for deposit in each Loan Combination
Custodial Account shall be exclusive. Notwithstanding the foregoing, actual
payments from the related Mortgagor in respect of the related Serviced Loan
Combination in the nature of Escrow Payments, Reserve Funds, assumption fees,
assumption application fees, funds representing such Mortgagor's payment of
costs and expenses associated with assumptions and defeasance, modification
fees, extension fees, charges for beneficiary statements or demands, amounts
collected for checks returned for insufficient funds and any similar fees to
which the Master Servicer or Special Servicer is entitled as additional
servicing compensation and that are not expressly referred to in the prior
paragraph, need not be deposited by the Master Servicer in the subject Loan
Combination Custodial Account. If the Master Servicer shall deposit into any
Loan Combination Custodial Account any amount not required to be deposited
therein, then it may at any time withdraw such amount from such Custodial
Account, any provision herein to the contrary notwithstanding. The Master
Servicer shall promptly deliver to the Special Servicer, as additional special
servicing compensation in accordance with Section 3.11(d), all assumption fees
and assumption application fees (or the applicable portions thereof) and other
transaction fees received by the Master Servicer with respect to each Serviced
Loan Combination, to which the Special Servicer is entitled pursuant to such
section, upon receipt of a written statement of a Servicing Officer of the
Special Servicer describing the item and amount (unless pursuant to this
Agreement it is otherwise clear that the Special Servicer is entitled to such
amounts, in which case a written statement is not required). Each Loan
Combination Custodial Account shall be maintained as a segregated account,
separate and apart from trust funds created for mortgage-backed securities of
other series and the other accounts of the Master Servicer.
Upon receipt of any of the amounts described in clauses (i) through
(iv), (viii) and (ix) of the second preceding paragraph with respect to any
Serviced Loan Combination, the Special Servicer shall promptly, but in no event
later than two (2) Business Days after receipt, remit such amounts to the Master
Servicer for deposit into the related Loan Combination Custodial Account in
accordance with the
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second preceding paragraph (or, if applicable, into the Pool Custodial Account
in accordance with Section 3.04(a) and the proviso to the second preceding
paragraph), unless the Special Servicer determines, consistent with the
Servicing Standard, that a particular item should not be deposited because of a
restrictive endorsement or other appropriate reason. With respect to any such
amounts paid by check to the order of the Special Servicer, the Special Servicer
shall endorse such check to the order of the Master Servicer, unless the Special
Servicer determines, consistent with the Servicing Standard, that a particular
item cannot be so endorsed and delivered because of a restrictive endorsement or
other appropriate reason. Any such amounts received by the Special Servicer with
respect to an Administered REO Property that relates to a Serviced Loan
Combination shall initially be deposited by the Special Servicer into the Loan
Combination REO Account established with respect to such Serviced Loan
Combination and thereafter remitted to the Master Servicer for deposit into the
related Loan Combination Custodial Account, all in accordance with Section
3.16(c).
Notwithstanding that a Loan Combination Custodial Account may be a
sub-account of the Pool Custodial Account for reasons of administrative
convenience, such Loan Combination Custodial Account and the Pool Custodial
Account shall, for all purposes of this Agreement (including the obligations and
responsibilities of the Master Servicer hereunder), be considered to be and
shall be required to be treated as, separate and distinct accounts. The Master
Servicer shall indemnify and hold harmless the Trust Fund and the respective
related Non-Trust Mortgage Loan Noteholders against any losses arising out of
the failure by the Master Servicer to perform its duties and obligations
hereunder as if such accounts were separate accounts. The provisions of this
paragraph shall survive any resignation or removal of the Master Servicer and
appointment of a successor master servicer.
(b) If and when the related Mortgagor elects to defease any Serviced
Loan Combination or any portion thereof, the provisions of the next to last
paragraph of Section 3.04(a) relating to the Defeasance Deposit Account shall
apply.
(c) In connection with each Serviced Loan Combination, the Master
Servicer shall give notice to the Trustee, the related Non-Trust Mortgage Loan
Noteholder(s) and the Special Servicer of the location of the related Loan
Combination Custodial Account when first established and of the new location of
the related Loan Combination Custodial Account prior to any change thereof.
SECTION 3.05. Permitted Withdrawals From the Pool Custodial Account,
the Collection Account, the Interest Reserve Account and
the Excess Liquidation Proceeds Account.
(a) The Master Servicer may, from time to time, make withdrawals from
the Pool Custodial Account for any of the following purposes (the order set
forth below not constituting an order of priority for such withdrawals):
(i) to remit to the Trustee for deposit in the Collection Account
the amounts required to be so deposited pursuant to the first paragraph of
Section 3.04(b), and any amounts that may be applied to make P&I Advances
with respect to the Mortgage Pool pursuant to Section 4.03(a);
(ii) to reimburse the Fiscal Agent, the Trustee and itself, in
that order, for xxxxxxxxxxxx X&X Advances made thereby with respect to the
Mortgage Pool (exclusive of any Serviced Combination Trust Mortgage Loan or
any successor REO Trust Mortgage Loan with
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respect thereto), the Fiscal Agent's, the Trustee's and the Master
Servicer's, as the case may be, respective rights to reimbursement pursuant
to this clause (ii) with respect to any such P&I Advance being limited to
amounts on deposit in the Pool Custodial Account that represent Late
Collections of interest and principal (net of related Master Servicing Fees
and any related Workout Fees and/or Liquidation Fees) received in respect
of the particular Trust Mortgage Loan or REO Trust Mortgage Loan as to
which such P&I Advance was made;
(iii) to pay to itself earned and unpaid Master Servicing Fees
with respect to the Mortgage Pool (exclusive of any Serviced Combination
Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect
thereto), the Master Servicer's right to payment pursuant to this clause
(iii) with respect to any such Master Servicing Fees being limited to
amounts on deposit in the Pool Custodial Account that are allocable as a
recovery of interest on or in respect of the Trust Mortgage Loan or REO
Trust Mortgage Loan as to which such Master Servicing Fees were earned;
(iv) to pay (A) to the Special Servicer, out of general
collections on the Mortgage Pool on deposit in the Pool Custodial Account,
earned and unpaid Special Servicing Fees in respect of each Specially
Serviced Trust Mortgage Loan and each REO Trust Mortgage Loan that relates
to an Administered REO Property and (B) to itself, out of general
collections on the Mortgage Pool on deposit in the Pool Custodial Account,
any Master Servicing Fee earned in respect of any Trust Mortgage Loan or
REO Trust Mortgage Loan that remains unpaid in accordance with clause (iii)
above or Section 3.05A, as applicable, following a Final Recovery
Determination made with respect to such Trust Mortgage Loan or the related
REO Property and the deposit into the Pool Custodial Account of all amounts
received in connection with such Final Recovery Determination;
(v) to pay the Special Servicer (or, if applicable, a predecessor
Special Servicer) any earned and unpaid Workout Fees and Liquidation Fees
in respect of each Specially Serviced Trust Mortgage Loan, each Corrected
Trust Mortgage Loan and/or each REO Trust Mortgage Loan that relates to an
Administered REO Property (other than, if applicable, any Serviced
Combination Trust Mortgage Loan or any successor REO Trust Mortgage Loan
with respect thereto), as applicable, in the amounts and from the sources
specified in Section 3.11(c);
(vi) to reimburse the Fiscal Agent, the Trustee, itself and the
Special Servicer, in that order, for any unreimbursed Servicing Advances
made thereby with respect to any Serviced Trust Mortgage Loan or
Administered REO Property (other than any Serviced Combination Trust
Mortgage Loan or any related Administered REO Property), the Fiscal
Agent's, the Trustee's, the Master Servicer's and the Special Servicer's
respective rights to reimbursement pursuant to this clause (vi) with
respect to any Servicing Advance being limited to amounts on deposit in the
Pool Custodial Account that represent payments made by or on behalf of the
related Mortgagor to cover the item for which such Servicing Advance was
made, and to amounts on deposit in the Pool Custodial Account that
represent Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds
and, if applicable, REO Revenues (in each case, if applicable, net of any
Liquidation Fee or Workout Fee payable therefrom) received in respect of
the particular Serviced Trust Mortgage Loan or Administered REO Property as
to which such Servicing Advance was made;
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(vii) to reimburse the Fiscal Agent, the Trustee, itself and the
Special Servicer, in that order, out of general collections on the Mortgage
Pool on deposit in the Pool Custodial Account, for any unreimbursed
Advances that have been or are determined to be Nonrecoverable Advances
(provided that such amounts may be withdrawn over time in accordance with
Sections 3.11(g) or 4.03(d), as applicable);
(viii) to pay the Fiscal Agent, the Trustee, itself and the
Special Servicer, in that order, any unpaid interest accrued and payable in
accordance with Section 3.11(g) or 4.03(d), as applicable, on any Advance
made thereby under this Agreement, the Fiscal Agent's, the Trustee's, the
Master Servicer's and the Special Servicer's respective rights to payment
pursuant to this clause (viii) with respect to interest on any such Advance
being limited to amounts on deposit in the Pool Custodial Account that
represent Default Charges collected on or in respect of the Trust Mortgage
Loan or REO Trust Mortgage Loan, as applicable, as to which the subject
Advance was made, as and to the extent contemplated by Section 3.26;
(ix) to pay, out of general collections on the Mortgage Pool on
deposit in the Pool Custodial Account, the Fiscal Agent, the Trustee,
itself and the Special Servicer, in that order, any unpaid interest accrued
and payable in accordance with Section 3.11(g) or 4.03(d), as applicable,
on any Advance made thereby with respect to the Mortgage Pool (or, in the
case of a Servicing Advance, made thereby with respect to a Serviced Loan
Combination), but only to the extent that such Advance has been reimbursed
or is then being reimbursed and the related Default Charges then on deposit
in the Pool Custodial Account are not sufficient to make such payment as
contemplated by the immediately preceding clause (viii); provided that, if
such Advance relates to any Serviced Combination Trust Mortgage Loan or any
successor REO Trust Mortgage Loan with respect thereto (or, in the case of
Servicing Advance, relates to any Serviced Loan Combination), such payment
pursuant to this clause (ix) is to be made only to the extent that the
funds on deposit in the related Loan Combination Custodial Account are not
sufficient to make such payment as contemplated by Section 3.05A and such
payment cannot be made out of the Pool Custodial Account pursuant to clause
(xviii) of this Section 3.05(a);
(x) to pay, out of amounts on deposit in the Pool Custodial
Account that represent Default Charges collected on or in respect of the
Trust Mortgage Loan or REO Trust Mortgage Loan to which the subject expense
relates (to the extent such Default Charges are not otherwise applied as
contemplated by clause (viii) above), any unpaid expense (other than
interest accrued on Advances, which is payable pursuant to clause (viii)
above, and other than Special Servicing Fees, Liquidation Fees and Workout
Fees) that is incurred with respect to such Trust Mortgage Loan or REO
Trust Mortgage Loan and that, if paid from collections on the Mortgage Pool
other than Default Charges collected with respect to such Trust Mortgage
Loan or REO Trust Mortgage Loan, would constitute an Additional Trust Fund
Expense, as and to the extent contemplated by Section 3.26;
(xi) to pay, out of general collections on the Mortgage Pool on
deposit in the Pool Custodial Account, for (A) costs and expenses incurred
by the Trust Fund pursuant to Section 3.09(c) (other than the costs of
environmental testing, which are to be covered by, and reimbursable as, a
Servicing Advance), (B) the cost of an independent appraiser or other
expert in real estate matters retained pursuant to Sections 3.11(h), 3.18
or 4.03(c), and (C) the fees of any Independent Contractor retained with
respect to any related Administered REO Property
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pursuant to Section 3.17(d) (to the extent that it has not paid itself such
fees prior to remitting collections on such REO Property to the Special
Servicer); provided that, in the case of a Mortgaged Property that relates
to a Serviced Loan Combination, such payment pursuant to this clause (xi)
is to be made only to the extent that (X) it would not ultimately be
payable out of collections on or in respect of such Loan Combination or (Y)
it is in the best interests of the Certificateholders;
(xii) to pay itself, as additional master servicing compensation
in accordance with Section 3.11(b), any amounts on deposit in the Pool
Custodial Account that represent (A) interest and investment income earned
in respect of amounts held in the Pool Custodial Account as provided in
Section 3.06(b), but only to the extent of the Net Investment Earnings with
respect to the Pool Custodial Account for any related Investment Period,
(B) Prepayment Interest Excesses collected on the Mortgage Pool and (C) Net
Default Charges (after application pursuant to Section 3.26) actually
Received by the Trust that accrued in respect of an Outside Serviced Trust
Mortgage Loan or Performing Serviced Trust Mortgage Loan; and to pay the
Special Servicer, as additional special servicing compensation in
accordance with Section 3.11(d), any amounts on deposit in the Pool
Custodial Account that represent Net Default Charges (after application to
cover such other payments and reimbursements as are provided for under
Section 3.26) actually collected that accrued in respect of a Specially
Serviced Trust Mortgage Loan and/or an REO Trust Mortgage Loan that relates
to an Administered REO Property;
(xiii) to pay itself, the Special Servicer, the Depositor, or any
of their respective members, managers, directors, officers, employees and
agents, as the case may be, out of general collections on the Mortgage Pool
on deposit in the Pool Custodial Account, any amounts payable to any such
Person pursuant to Section 6.03; provided that such payment does not relate
solely to a Serviced Non-Trust Mortgage Loan or any successor REO Mortgage
Loan with respect thereto;
(xiv) to pay, out of general collections on the Mortgage Pool on
deposit in the Pool Custodial Account, for (A) the cost of the Opinion of
Counsel contemplated by Section 11.02(a), (B) the cost of an Opinion of
Counsel contemplated by Section 11.01(a) or 11.01(c) in connection with any
amendment to this Agreement requested by the Master Servicer or the Special
Servicer that protects or is in furtherance of the rights and interests of
Certificateholders, and (C) the cost of recording this Agreement in
accordance with Section 11.02(a); provided that, in the cases of clauses
(xiv)(A) and (xiv)(C), such payment shall be made from the Pool Custodial
Account only to the extent that it is not otherwise paid from the related
Loan Combination Custodial Account by the Trust Master Servicer Remittance
Date following the applicable Collection Period in which the expense is
incurred;
(xv) to pay itself, the Special Servicer, the Depositor, any
Controlling Class Certificateholder or any other Person, as the case may
be, with respect to each Trust Mortgage Loan, if any, previously purchased
by such Person pursuant to this Agreement, all amounts received thereon
subsequent to the date of purchase that have been deposited in the Pool
Custodial Account;
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(xvi) to pay, in accordance with Section 3.11(i), out of general
collections on the Mortgage Pool on deposit in the Pool Custodial Account,
any servicing expenses, that would, if advanced, constitute Nonrecoverable
Servicing Advances (other than servicing expenses that relate solely to a
Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect
thereto);
(xvii) to pay, out of general collections on the Mortgage Pool on
deposit in the Pool Custodial Account, to a Non-Trust Mortgage Loan
Noteholder or an Outside Servicer, any amount (other than normal monthly
payments) specifically payable or reimbursable to such party by the Trust,
in its capacity as holder of the related Trust Mortgage Loan or REO Trust
Mortgage Loan that is part of the relevant Loan Combination, pursuant to
the terms of the related Co-Lender Agreement;
(xviii) to reimburse the Fiscal Agent, the Trustee, the Master
Servicer and/or the Special Servicer, as applicable, for unreimbursed
Advances, unpaid Master Servicing Fees and/or any unpaid interest on any
Advances, but only if and to the extent that such items relate solely to a
Serviced Combination Trust Mortgage Loan or any successor REO Trust
Mortgage Loan with respect thereto, each such party's respective rights to
reimbursement pursuant to this clause (xviii) to be limited to amounts on
deposit in the Pool Custodial Account that represent Liquidation Proceeds
derived from a Permitted Purchase of such Serviced Combination Trust
Mortgage Loan or the Trust's interest in any related Administered REO
Property; provided that, such items may only be reimbursed to any party
pursuant to this clause (xviii) if and to the extent that such items have
not been or are not simultaneously being reimbursed to such party pursuant
to Section 3.05A; and provided, further, that, in the case of a sale of a
Serviced Combination Trust Mortgage Loan with respect to which the Purchase
Price therefor has been reduced by amounts set forth in the next to last
proviso of the definition of "Purchase Price", the amount of any unpaid
Master Servicing Fees, unreimbursed Advances and/or unpaid interest on
Advances reimbursable to any party pursuant to this clause (xviii) shall be
reduced by any related unpaid Master Servicing Fees, unreimbursed Advances
and unpaid interest on Advances in respect of the subject Serviced
Combination Trust Mortgage Loan or REO Trust Mortgage Loan that have served
to so reduce such Purchase Price therefor and which, following the purchase
or sale from which the subject Liquidation Proceeds have been derived, will
continue to be payable or reimbursable under the related Co-Lender
Agreement and/or any successor servicing agreement with respect to the
related Serviced Loan Combination to the Master Servicer and/or the Special
Servicer (and which amounts shall no longer be payable hereunder);
(xix) on each Trust Master Servicer Remittance Date, to transfer
Excess Liquidation Proceeds in respect of the Mortgage Pool to the Trustee,
for deposit in the Excess Liquidation Proceeds Account, in accordance with
Section 3.04(d); and
(xx) to clear and terminate the Pool Custodial Account at the
termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan basis when appropriate, in connection with any
withdrawal from the Pool Custodial Account pursuant to clauses (ii) through
(xix) above.
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The Master Servicer shall pay to the Special Servicer (or to
third-party contractors at the direction of the Special Servicer), the Trustee
or the Fiscal Agent from the Pool Custodial Account, amounts permitted to be
paid to the Special Servicer (or to any such third-party contractor), the
Trustee or the Fiscal Agent therefrom promptly upon receipt of a written
statement of a Servicing Officer of the Special Servicer or of a Responsible
Officer of the Trustee or the Fiscal Agent describing the item and amount to
which the Special Servicer (or such third-party contractor), the Trustee or the
Fiscal Agent, as applicable, is entitled (unless such payment to the Special
Servicer, the Trustee (for example, the Trustee Fee) or the Fiscal Agent, as the
case may be, is clearly required pursuant to this Agreement, in which case a
written statement is not required). The Master Servicer may rely conclusively on
any such written statement and shall have no duty to re-calculate the amounts
stated therein.
In connection with any payments required to be made to a Non-Trust
Mortgage Loan Noteholder or an Outside Servicer in accordance with Section
3.05(a)(xvii), the Master Servicer may request a written statement from a
servicing officer or responsible officer, as applicable, of such Non-Trust
Mortgage Loan Noteholder or an Outside Servicer, describing the nature and
amount of the item for which such party is seeking payment or reimbursement and
setting forth the provision(s) of the related Co-Lender Agreement pursuant to
which such party believes it is entitled to reimbursement; provided that the
Master Servicer may not condition payments required to be made to a Non-Trust
Mortgage Loan Noteholder or an Outside Servicer in accordance with Section
3.05(a)(xvii) upon receipt of such a written statement (other than as permitted
under the related Co-Lender Agreement); and provided, further, that to the
extent such a written statement from a servicing officer or responsible officer,
as applicable, of the subject Non-Trust Mortgage Loan Noteholder or an Outside
Servicer is received by the Master Servicer, the Master Servicer may reasonably
rely upon such statement as the nature and amount of the item for which
reimbursement is sought.
The Special Servicer shall keep and maintain separate accounting for
each Specially Serviced Trust Mortgage Loan and Administered REO Property, on a
loan-by-loan basis, for the purpose of justifying any request for withdrawal
from the Pool Custodial Account. With respect to each Trust Mortgage Loan for
which it makes an Advance, each of the Trustee and the Fiscal Agent shall keep
and maintain separate accounting, on a loan-by-loan basis, for the purpose of
justifying any request for withdrawal from the Pool Custodial Account for
reimbursements of Advances or payments of interest thereon.
(b) The Trustee may, from time to time, make withdrawals from the
Collection Account for any of the following purposes (in no particular order of
priority):
(i) to make distributions to Certificateholders on each
Distribution Date pursuant to Section 4.01 or 9.01, as applicable;
(ii) to pay (A) the Trustee, the Fiscal Agent or any of their
respective directors, officers, employees and agents, as the case may be,
out of general collections on the Mortgage Pool on deposit in the
Collection Account, any amounts payable or reimbursable to any such Person
pursuant to Section 7.01(b) and/or Section 8.05, as applicable, and (B) as
and when contemplated by Section 8.08, the cost of the Trustee's
transferring Mortgage Files and other documents to a successor after being
terminated by Certificateholders pursuant to Section 8.07(c) without cause;
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(iii) to pay, out of general collections on the Mortgage Pool on
deposit in the Collection Account, for the cost of the Opinions of Counsel
sought by the Trustee or the Tax Administrator (A) as provided in clause
(iv) of the definition of "Disqualified Organization", (B) as contemplated
by Sections 10.01(i) and 10.02(e), or (C) as contemplated by Section
11.01(a) or 11.01(c) in connection with any amendment to this Agreement
requested by the Trustee which amendment is in furtherance of the rights
and interests of Certificateholders;
(iv) to pay, out of general collections on the Mortgage Pool on
deposit in the Collection Account, any and all federal, state and local
taxes imposed on any REMIC Pool or on the assets or transactions of any
REMIC Pool, together with all incidental costs and expenses, to the extent
none of the Depositor, the Trustee, the Tax Administrator, the Master
Servicer or the Special Servicer is liable therefor pursuant to Section
10.01(j) or Section 10.02(f);
(v) to pay the Tax Administrator, out of general collections on
the Mortgage Pool on deposit in the Collection Account, any amounts
reimbursable to it pursuant to Section 10.01(f) or Section 10.02(b);
(vi) to pay the Master Servicer any amounts deposited by the
Master Servicer in the Collection Account in error;
(vii) to transfer Interest Reserve Amounts in respect of the
Interest Reserve Mortgage Loans and any Interest Reserve REO Mortgage Loans
to the Interest Reserve Account as and when required by Section 3.04(c);
(viii) to pay itself any Net Investment Earnings with respect to
the Collection Account for any related Investment Period; and
(ix) to clear and terminate the Collection Account at the
termination of this Agreement pursuant to Section 9.01.
On or prior to a Distribution Date, the Trustee shall be entitled to
withdraw amounts that are payable or reimbursable as set forth in clauses (ii)
through (viii) above from the Collection Account prior to making distributions
to Certificateholders on such Distribution Date.
(c) On each Trust Master Servicer Remittance Date in March (commencing
in March 2006), the Trustee shall withdraw from the Interest Reserve Account and
deposit in the Collection Account all Interest Reserve Amounts that have been
deposited in the Interest Reserve Account in respect of the Interest Reserve
Mortgage Loans and any Interest Reserve REO Mortgage Loans during January and/or
February of the same year in accordance with Section 3.04(c). On each
Distribution Date, the Trustee may withdraw from the Interest Reserve Account
and pay itself any Net Investment Earnings with respect to the Interest Reserve
Account for the then most recently ended related Investment Period.
(d) On each Trust Master Servicer Remittance Date, the Trustee shall
withdraw from the Excess Liquidation Proceeds Account and deposit in the
Collection Account, for distribution on the following Distribution Date, an
amount equal to the lesser of (i) the entire amount, if any, then on deposit in
the Excess Liquidation Proceeds Account and (ii) the excess, if any, of the
aggregate amount distributable with respect to the Regular Interest Certificates
on such Distribution Date pursuant to
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Sections 4.01(a) and 4.01(b), over the Available Distribution Amount for such
Distribution Date (calculated without regard to such transfer from the Excess
Liquidation Proceeds Account to the Collection Account); provided that on the
Trust Master Servicer Remittance Date immediately prior to the Final
Distribution Date, the Trustee shall withdraw from the Excess Liquidation
Proceeds Account and deposit in the Collection Account, for distribution on such
Distribution Date, any and all amounts then on deposit in the Excess Liquidation
Proceeds Account. On each Distribution Date, the Trustee may withdraw from the
Excess Liquidation Proceeds Account and pay itself any Net Investment Earnings
with respect to the Excess Liquidation Proceeds Account for the then most
recently ended related Investment Period.
(e) If any Loss of Value Payments are deposited into the Loss of Value
Reserve Fund with respect to any Trust Mortgage Loan or any related REO
Property, then the Special Servicer shall, promptly when needed, transfer such
Loss of Value Payments (up to the remaining portion thereof) from the Loss of
Value Reserve Fund to the Pool Custodial Account for the following purposes:
(i) to reimburse the Master Servicer, the Special Servicer, the
Trustee or the Fiscal Agent, in accordance with Section 3.05(a), for any
Nonrecoverable Advance made by such party with respect to such Trust
Mortgage Loan or any related REO Property (together with interest thereon);
(ii) to pay, in accordance with Section 3.05(a), or to reimburse
the Trust for the prior payment of, any expense relating to such Trust
Mortgage Loan or any related REO Property that constitutes or, if not paid
out of such Loss of Value Payments, would constitute an Additional Trust
Fund Expense;
(iii) to offset any Realized Loss (as calculated without regard
to the application of such Loss of Value Payments) incurred with respect to
such Trust Mortgage Loan or any successor REO Trust Mortgage Loan with
respect thereto; and
(iv) following the occurrence of a Liquidation Event with respect
to such Trust Mortgage Loan or any related REO Property, to cover the items
contemplated by the immediately preceding clauses (i)-(iii) in respect of
any other Trust Mortgage Loan or REO Trust Mortgage Loan.
Any Loss of Value Payments transferred to the Pool Custodial Account
pursuant to clauses (i)-(iii) of the prior paragraph shall, except for purposes
of Section 3.11(c), be deemed to constitute Liquidation Proceeds Received by the
Trust in respect of the related Trust Mortgage Loan or any successor REO Trust
Mortgage Loan with respect thereto for which such Loss of Value Payments were
received; and any Loss of Value Payments transferred to the Pool Custodial
Account pursuant to clause (iv) of the prior paragraph shall, except for
purposes of Section 3.11(c), be deemed to constitute Liquidation Proceeds
Received by the Trust in respect of the Trust Mortgage Loan or REO Trust
Mortgage Loan for which such Loss of Value Payments are being transferred to the
Pool Custodial Account to cover an item contemplated by clauses (i) - (iii) of
the prior paragraph.
On the Trust Master Servicer Remittance Date related to the Final
Distribution Date, the Special Servicer shall withdraw from the Loss of Value
Reserve Fund and transfer to the Trustee, for deposit in the Collection Account
and, thereafter, for distribution on the Final Distribution Date, an amount
equal to the lesser of (i) the entire amount, if any, then on deposit in the
Loss of Value Reserve
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Fund and (ii) the excess, if any, of the aggregate amount needed to distribute
to the Holders of the Regular Interest Certificates in accordance with Section
9.01(a), all Distributable Certificate Interest then payable thereto, together
with the aggregate Certificate Principal Balance of, and all Loss Reimbursement
Amounts for such Final Distribution Date in respect of, the respective Classes
of the Regular Interest Certificates, over the Available Distribution Amount for
the Final Distribution Date (calculated without regard to such transfer from the
Loss of Value Reserve Fund to the Collection Account). Such Loss of Value
Payments so deposited in the Collection Account shall constitute part of the
Available Distribution Amount for the Final Distribution Date. Any amount
remaining in the Loss of Value Reserve Fund on the Final Distribution Date,
after application in accordance with the second preceding sentence, shall be
distributable to the Holders of the Class R-III Certificates on the Final
Distribution Date.
SECTION 3.05A. Permitted Withdrawals From the Loan Combination
Custodial Accounts.
The Master Servicer may, from time to time, make withdrawals from the
Loan Combination Custodial Account related to each Serviced Loan Combination for
any of the following purposes (the order set forth below not constituting an
order of priority for such withdrawals, except to the extent expressly provided
in the related Co-Lender Agreement):
(i) to make remittances each month, on or before the related Loan
Combination Master Servicer Remittance Date occurring in such month (and at
such other times as may be required under the related Co-Lender Agreement),
to the respective holders of the Mortgage Loans or any successor REO
Mortgage Loans contained in the subject Serviced Loan Combination,
including the Trust (as holder of the Trust Mortgage Loan contained in the
subject Serviced Loan Combination or any successor REO Trust Mortgage Loan
with respect thereto, as applicable), all in accordance with the related
Co-Lender Agreement, such remittances to the Trust to be made into the Pool
Custodial Account;
(ii) to reimburse, first, the Fiscal Agent, second, the Trustee,
and last, itself, in that order, for xxxxxxxxxxxx X&X Advances made by such
party (with its own funds) with respect to the Trust Mortgage Loan included
in the subject Serviced Loan Combination or any successor REO Trust
Mortgage Loan with respect thereto, any such reimbursement pursuant to this
clause (ii) with respect to any such P&I Advance to be made out of amounts
on deposit in the related Loan Combination Custodial Account that would
otherwise be distributable to the Trust as late collections of interest on
and/or principal of the Trust Mortgage Loan included in the subject
Serviced Loan Combination or any successor REO Mortgage Loan with respect
thereto, as the case may be, without regard to such P&I Advance, such
reimbursement to be deducted (if and to the extent so provided in the
related Co-Lender Agreement) from the amounts otherwise so distributable;
(iii) to reimburse, first, the Fiscal Agent, second, the Trustee,
third, itself, and last, the Special Servicer, in that order, for any
unreimbursed Servicing Advances made thereby with respect to the subject
Serviced Loan Combination or any related REO Property, any such party's
respective rights to reimbursement pursuant to this clause (iii) with
respect to any Servicing Advance being limited to amounts on deposit in the
related Loan Combination Custodial Account that represent payments made by
or on behalf of the related Mortgagor to
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cover the item for which such Servicing Advance was made, and to amounts on
deposit in the related Loan Combination Custodial Account that represent
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds and, if
applicable, REO Revenues (in each case, if applicable, net of any
Liquidation Fee or Workout Fee payable therefrom) received in respect of
the subject Serviced Loan Combination or any related REO Property (with, if
and to the extent applicable under the related Co-Lender Agreement, a
corresponding allocation of such Servicing Advance and the reimbursement
thereof to one or more of the Mortgage Loans comprising the subject
Serviced Loan Combination or any successor REO Mortgage Loans with respect
thereto, and a corresponding deduction of such Servicing Advance from the
amounts otherwise distributable under the related Co-Lender Agreement to
one or more of the respective holders of the Mortgage Loans comprising the
subject Serviced Loan Combination or any successor REO Mortgage Loans with
respect thereto, all in accordance with the related Co-Lender Agreement,
and taking into account the subordination of the Non-Trust Mortgage Loan(s)
included in the subject Serviced Loan Combination or any successor REO
Mortgage Loan(s) with respect thereto);
(iv) to pay the Fiscal Agent, the Trustee and itself for any
unpaid interest accrued and payable hereunder on any P&I Advance made
thereby under this Agreement on the Trust Mortgage Loan included in the
subject Serviced Loan Combination or any successor REO Trust Mortgage Loan
with respect thereto, any such payment (as and to the extent provided in
the related Co-Lender Agreement) to be made pursuant to this clause (iv)
out of: first, any amounts on deposit in the related Loan Combination
Custodial Account that would otherwise be distributable under the related
Co-Lender Agreement to the holders of the Mortgage Loans comprising the
subject Serviced Loan Combination or any successor REO Mortgage Loans with
respect thereto as Default Charges on their respective Mortgage Loans or
any successor REO Mortgage Loans with respect thereto, all in accordance
with Section 3.26, with such payment to be deducted from the amounts
otherwise so distributable; and second, to the maximum extent permitted by
the related Co-Lender Agreement, any amounts on deposit in the related Loan
Combination Custodial Account that would otherwise be distributable under
the related Co-Lender Agreement to the related Non-Trust Mortgage Loan
Noteholder(s) as collections of interest on and/or principal of, or any
other relevant amounts with respect to, the Non-Trust Mortgage Loan(s)
included in the subject Serviced Loan Combination or any successor REO
Mortgage Loan(s) with respect thereto, with such payment to be deducted (if
and to the extent so provided in the related Co-Lender Agreement) from such
amounts otherwise so distributable; and third, any remaining amounts on
deposit in the related Loan Combination Custodial Account that would
otherwise be distributable under the related Co-Lender Agreement to the
holders of the Mortgage Loans comprising the subject Serviced Loan
Combination or any successor REO Mortgage Loans with respect thereto (with,
if and to the extent applicable under the related Co-Lender Agreement, a
corresponding allocation of the remaining portion of such interest on such
P&I Advance and the payment thereof to one or more of the Mortgage Loans
comprising the subject Serviced Loan Combination or any successor REO
Mortgage Loans with respect thereto, and a corresponding deduction of the
remaining portion of such interest on such P&I Advance from such remaining
amounts otherwise so distributable under the related Co-Lender Agreement to
one or more of the respective holders of the Mortgage Loans comprising the
subject Serviced Loan Combination or any successor REO Mortgage Loans with
respect thereto, all in accordance with the related Co-Lender Agreement,
and taking into account the subordination of the Non-Trust Mortgage Loan(s)
included in the subject Serviced Loan Combination or any successor
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REO Mortgage Loan(s) with respect thereto); provided that, in the case of
subclauses second and third of this clause (iv), such payment shall be made
only to the extent the related P&I Advance has been or is contemporaneously
being reimbursed and only insofar as such unpaid interest is not then
payable pursuant to a withdrawal made in accordance with subclause first of
this clause (iv);
(v) to pay the Fiscal Agent, the Trustee, itself and the Special
Servicer for any unpaid interest accrued and payable hereunder on any
Servicing Advance made thereby under this Agreement with respect to the
subject Serviced Loan Combination or any related Administered REO Property,
any such payment (as and to the extent provided in the related Co-Lender
Agreement) to be made pursuant to this clause (v) out of: first, any
amounts on deposit in the related Loan Combination Custodial Account that
would otherwise be distributable under the related Co-Lender Agreement to
the holders of the Mortgage Loans comprising the subject Serviced Loan
Combination or any successor REO Mortgage Loans with respect thereto as
Default Charges on their respective Mortgage Loans or any successor REO
Mortgage Loans with respect thereto, all in accordance with Section 3.26,
with such payment to be deducted from such amounts otherwise so
distributable; second, to the maximum extent permitted by the related
Co-Lender Agreement, any amounts on deposit in the related Loan Combination
Custodial Account that would otherwise be distributable under the related
Co-Lender Agreement to the related Non-Trust Mortgage Loan Noteholder(s) as
collections of interest on and/or principal of, or any other relevant
amounts with respect to, the Non-Trust Mortgage Loan(s) included in the
subject Serviced Loan Combination or any successor REO Mortgage Loan with
respect thereto, with such payment to be deducted (if and to the extent so
provided in the related Co-Lender Agreement) from such amounts otherwise so
distributable; and third, any remaining amounts on deposit in the related
Loan Combination Custodial Account that would otherwise be distributable
under the related Co-Lender Agreement to the holders of the Mortgage Loans
comprising the subject Serviced Loan Combination or any successor REO
Mortgage Loans with respect thereto (with, if and to the extent applicable
under the related Co-Lender Agreement, a corresponding allocation of the
remaining portion of such interest on such Servicing Advance and the
payment thereof to one or more of the Mortgage Loans comprising the subject
Serviced Loan Combination or any successor REO Mortgage Loans with respect
thereto, and a corresponding deduction of the remaining portion of such
interest on such Servicing Advance from such remaining amounts otherwise so
distributable under the related Co-Lender Agreement to one or more of the
respective holders of the Mortgage Loans comprising the subject Serviced
Loan Combination or any successor REO Mortgage Loans with respect thereto,
all in accordance with the related Co-Lender Agreement, and taking into
account the subordination of the Non-Trust Mortgage Loan(s) included in the
subject Serviced Loan Combination or any successor REO Mortgage Loan(s)
with respect thereto); provided that, in the case of subclause second and
third of this clause (v), such payment shall be made only to the extent the
related Servicing Advance has been or is contemporaneously being reimbursed
and only insofar as such unpaid interest is not then payable pursuant to a
withdrawal made in accordance with subclause first above of this clause
(v);
(vi) to pay to itself any earned and unpaid Master Servicing Fees
with respect to each Mortgage Loan and successor REO Mortgage Loan
contained in the subject Serviced Loan Combination, the right of the Master
Servicer to payment pursuant to this clause (vi) with respect to any such
Mortgage Loan or successor REO Mortgage Loan being limited to amounts
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on deposit in the related Loan Combination Custodial Account that were
received on or in respect of such Mortgage Loan or such successor REO
Mortgage Loan, as the case may be, and are allocable as a recovery of
interest thereon;
(vii) to reimburse, first, the Fiscal Agent, second, the Trustee,
and last, itself, in that order, for any xxxxxxxxxxxx X&X Advances made by
such party (with its own funds) with respect to the Trust Mortgage Loan
included in the subject Serviced Loan Combination or any successor REO
Trust Mortgage Loan with respect thereto that such party has determined are
Nonrecoverable Advances, any such reimbursement (as and to the extent
provided in the related Co-Lender Agreement) to be made pursuant to this
clause (vii) out of: first, to the maximum extent permitted under the
related Co-Lender Agreement, any amounts on deposit in the related Loan
Combination Custodial Account that would otherwise be distributable under
the related Co-Lender Agreement to the related Non-Trust Mortgage Loan
Noteholder(s) as collections of interest on and/or principal of, or any
other relevant amounts with respect to, the Non-Trust Mortgage Loan(s)
included in the subject Serviced Loan Combination or any successor REO
Mortgage Loan(s) with respect thereto, with such payment to be deducted (if
and to the extent so provided in the related Co-Lender Agreement) from such
amounts otherwise so distributable; and second, any remaining amounts on
deposit in the related Loan Combination Custodial Account that would
otherwise be distributable under the related Co-Lender Agreement to the
holders of the Mortgage Loans comprising the subject Serviced Loan
Combination or any successor REO Mortgage Loans with respect thereto (with,
if and to the extent applicable under the related Co-Lender Agreement, a
corresponding allocation of the remaining portion of such P&I Advances and
the reimbursement thereof to one or more of the Mortgage Loans comprising
the subject Serviced Loan Combination or any successor REO Mortgage Loans
with respect thereto, and a corresponding deduction of the remaining
portion of such P&I Advances from such remaining amounts otherwise so
distributable under the related Co-Lender Agreement to one or more of the
respective holders of the Mortgage Loans comprising the subject Serviced
Loan Combination or any successor REO Mortgage Loans with respect thereto,
all in accordance with the related Co-Lender Agreement, and taking into
account the subordination of the Non-Trust Mortgage Loan(s) included in the
subject Serviced Loan Combination or any successor REO Mortgage Loan(s)
with respect thereto);
(viii) to reimburse, first, the Fiscal Agent, second, the
Trustee, third, itself, and last, the Special Servicer, in that order, for
any unreimbursed Servicing Advance made by such party (with its own funds)
with respect to the subject Serviced Loan Combination or any related
Administered REO Property that such party has determined is a
Nonrecoverable Advance, any such reimbursement (as and to the extent
provided in the related Co-Lender Agreement) to be made pursuant to this
clause (viii) out of: first, to the maximum extent permitted by the related
Co-Lender Agreement, amounts on deposit in the related Loan Combination
Custodial Account that would otherwise be distributable under the related
Co-Lender Agreement to the related Non-Trust Mortgage Loan Noteholder(s) as
collections of interest on and/or principal of, or any other relevant
amounts with respect to, the Non-Trust Mortgage Loan(s) included in the
subject Serviced Loan Combination or any successor REO Mortgage Loan(s)
with respect thereto, with such reimbursement to be deducted (if and to the
extent so provided in the related Co-Lender Agreement) from the amounts
otherwise so distributable; and, second, any remaining amounts on deposit
in the related Loan Combination Custodial Account that would otherwise be
distributable under the related Co-Lender Agreement to the holders of the
Mortgage Loans comprising the
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subject Serviced Loan Combination or any successor REO Mortgage Loans with
respect thereto (with, if and to the extent applicable under the related
Co-Lender Agreement, a corresponding allocation of the remaining portion of
such Servicing Advance and the reimbursement thereof to one or more of the
Mortgage Loans comprising the subject Serviced Loan Combination or any
successor REO Mortgage Loans with respect thereto, and a corresponding
deduction of the remaining portion of such Servicing Advance from such
remaining amounts otherwise so distributable under the related Co-Lender
Agreement to one or more of the respective holders of the Mortgage Loans
comprising the subject Serviced Loan Combination or any successor REO
Mortgage Loans with respect thereto, all in accordance with the related
Co-Lender Agreement, and taking into account the subordination of the
Non-Trust Mortgage Loan(s) included in the subject Serviced Loan
Combination or any successor REO Mortgage Loan(s) with respect thereto);
(ix) to pay to the Special Servicer any earned and unpaid Special
Servicing Fees in respect of the subject Serviced Loan Combination, any
such payment (as and to the extent provided in the related Co-Lender
Agreement) to be made pursuant to this clause (ix) out of: first, to the
maximum extent permitted under the related Co-Lender Agreement, any amounts
on deposit in the related Loan Combination Custodial Account that would
otherwise be distributable under the related Co-Lender Agreement to the
related Non-Trust Mortgage Loan Noteholder(s) as collections of interest on
and/or principal of, or any other relevant amounts with respect to, the
Non-Trust Mortgage Loan(s) included in the subject Serviced Loan
Combination or any successor REO Mortgage Loan(s) with respect thereto,
with such payment to be deducted (if and to the extent so provided in the
related Co-Lender Agreement) from such amounts otherwise so distributable;
and, second, any remaining amounts on deposit in the related Loan
Combination Custodial Account that would otherwise be distributable under
the related Co-Lender Agreement to the holders of the Mortgage Loans
comprising the subject Serviced Loan Combination or any successor REO
Mortgage Loans with respect thereto (with, if and to the extent applicable
under the related Co-Lender Agreement, a corresponding allocation of the
remaining portion of such Special Servicing Fees and the payment thereof to
one or more of the Mortgage Loans comprising the subject Serviced Loan
Combination or any successor REO Mortgage Loans with respect thereto, and a
corresponding deduction of the remaining portion of such Special Servicing
Fees from such remaining amounts otherwise so distributable under the
related Co-Lender Agreement to one or more of the respective holders of the
Mortgage Loans comprising the subject Serviced Loan Combination or any
successor REO Mortgage Loans with respect thereto, all in accordance with
the related Co-Lender Agreement, and taking into account the subordination
of the Non-Trust Mortgage Loan(s) included in the subject Serviced Loan
Combination or any successor REO Mortgage Loan(s) with respect thereto);
(x) to pay the Special Servicer (or, if applicable, a predecessor
Special Servicer) earned and unpaid Workout Fees and Liquidation Fees in
respect of the subject Serviced Loan Combination, in the amounts and,
subject to the following priority, from the sources specified in Section
3.11(c) out of: first, to the maximum extent permitted under the related
Co-Lender Agreement, any amounts on deposit in the related Loan Combination
Custodial Account that would otherwise be distributable under the related
Co-Lender Agreement to the related Non-Trust Mortgage Loan Noteholder(s) as
collections of interest on and/or principal of, or any other relevant
amounts with respect to, the Non-Trust Mortgage Loan(s) included in the
subject Serviced Loan Combination or any successor REO Mortgage Loan(s)
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with respect thereto, with such payment to be deducted (if and to the
extent so provided in the related Co-Lender Agreement) from such amounts
otherwise so distributable; and, second, any remaining amounts on deposit
in the related Loan Combination Custodial Account that would otherwise be
distributable under the related Co-Lender Agreement to the holders of the
Mortgage Loans comprising the subject Serviced Loan Combination or any
successor REO Mortgage Loans with respect thereto (with, if and to the
extent applicable under the related Co-Lender Agreement, a corresponding
allocation of the remaining portion of such Workout Fees and/or Liquidation
Fees and the payment thereof to one or more of the Mortgage Loans
comprising the subject Serviced Loan Combination or any successor REO
Mortgage Loans with respect thereto, and a corresponding deduction of the
remaining portion of such Workout Fees and/or Liquidation Fees from such
remaining amounts otherwise so distributable under the related Co-Lender
Agreement to one or more of the respective holders of the Mortgage Loans
comprising the subject Serviced Loan Combination or any successor REO
Mortgage Loans with respect thereto, all in accordance with the related
Co-Lender Agreement, and taking into account the subordination of the
Non-Trust Mortgage Loan(s) included in the subject Serviced Loan
Combination or any successor REO Mortgage Loan(s) with respect thereto);
(xi) to pay for (A) costs and expenses incurred with respect to
the Mortgaged Property securing the subject Serviced Loan Combination
pursuant to Section 3.09(c) (other than the costs of environmental testing,
which are to be covered by, and reimbursable as, a Servicing Advance), (B)
the costs and expenses of obtaining appraisals of such Mortgaged Property
pursuant to Section 3.11(h), 3.18 or Section 4.03(c), as applicable, (C)
any servicing expenses incurred with respect to the subject Serviced Loan
Combination or any related REO Property, that would, if advanced,
constitute Nonrecoverable Servicing Advances, in accordance with Section
3.11(i), and (D) the fees of any Independent Contractor retained with
respect to any Administered REO Property related to the subject Serviced
Loan Combination pursuant to Section 3.17(d) (to the extent that it has not
paid itself such fees prior to remitting collections on such Administered
REO Property to the Special Servicer), any such payment (as and to the
extent provided in the related Co-Lender Agreement) to be made pursuant to
this clause (xi) out of: first, to the maximum extent permitted under the
related Co-Lender Agreement, any amounts on deposit in the related Loan
Combination Custodial Account that would otherwise be distributable under
the related Co-Lender Agreement to the related Non-Trust Mortgage Loan
Noteholder(s) as collections of interest on and/or principal of, or any
other relevant amounts with respect to, the Non-Trust Mortgage Loan(s)
included in the subject Serviced Loan Combination or any successor REO
Mortgage Loan(s) with respect thereto, with such payment to be deducted (if
and to the extent so provided in the related Co-Lender Agreement) from such
amounts otherwise so distributable; and, second, any remaining amounts on
deposit in the related Loan Combination Custodial Account that would
otherwise be distributable under the related Co-Lender Agreement to the
holders of the Mortgage Loans comprising the subject Serviced Loan
Combination or any successor REO Mortgage Loans with respect thereto (with,
if and to the extent applicable under the related Co-Lender Agreement, a
corresponding allocation of the remaining portion of such items specified
in subclauses (A)-(D) of this clause (xi) and the payment thereof to one or
more of the Mortgage Loans comprising the subject Serviced Loan Combination
or any successor REO Mortgage Loans with respect thereto, and a
corresponding deduction of the remaining portion of such items specified in
subclauses (A)-(D) of this clause (xi) from such remaining amounts
otherwise so distributable under the related Co-Lender Agreement to one or
more of the respective holders of the Mortgage Loans comprising the
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subject Serviced Loan Combination or any successor REO Mortgage Loans with
respect thereto, all in accordance with the related Co-Lender Agreement,
and taking into account the subordination of the Non-Trust Mortgage Loan(s)
included in the subject Serviced Loan Combination or any successor REO
Mortgage Loan(s) with respect thereto);
(xii) to pay itself, as additional master servicing compensation
in accordance with Section 3.11(b), interest and investment income earned
in respect of amounts held in the related Loan Combination Custodial
Account as provided in Section 3.06(b), but only to the extent of the Net
Investment Earnings with respect to the related Loan Combination Custodial
Account for any related Investment Period;
(xiii) to pay itself, the Special Servicer, the Depositor or any
of their respective members, managers, directors, officers, employees and
agents, as the case may be, any amounts payable to any such Person pursuant
to Section 6.03, to the extent such amounts relate to the subject Loan
Combination, any such payment (as and to the extent provided in the related
Co-Lender Agreement) to be made pursuant to this clause (xiii) out of:
first, to the maximum extent permitted under the related Co-Lender
Agreement, any amounts on deposit in the related Loan Combination Custodial
Account that would otherwise be distributable under the related Co-Lender
Agreement to the related Non-Trust Mortgage Loan Noteholder(s) as
collections of interest on and/or principal of, or any other relevant
amounts with respect to, the Non-Trust Mortgage Loan(s) included in the
subject Serviced Loan Combination or any successor REO Mortgage Loan(s)
with respect thereto, with such payment to be deducted (if and to the
extent so provided in the related Co-Lender Agreement) from such amounts
otherwise so distributable; and, second, any remaining amounts on deposit
in the related Loan Combination Custodial Account that would otherwise be
distributable under the related Co-Lender Agreement to the holders of the
Mortgage Loans comprising the subject Serviced Loan Combination or any
successor REO Mortgage Loans with respect thereto (with, if and to the
extent applicable under the related Co-Lender Agreement, a corresponding
allocation of the remaining portion of such amounts payable pursuant to
Section 6.03 and the payment thereof to one or more of the Mortgage Loans
comprising the subject Serviced Loan Combination or any successor REO
Mortgage Loans with respect thereto, and a corresponding deduction of the
remaining portion of such amounts payable pursuant to Section 6.03 from
such remaining amounts otherwise so distributable under the related
Co-Lender Agreement to one or more of the respective holders of the
Mortgage Loans comprising the subject Serviced Loan Combination or any
successor REO Mortgage Loans with respect thereto, all in accordance with
the related Co-Lender Agreement, and taking into account the subordination
of the Non-Trust Mortgage Loan(s) included in the subject Serviced Loan
Combination or any successor REO Mortgage Loan(s) with respect thereto);
(xiv) to pay (out of amounts otherwise payable thereto under the
related Co-Lender Agreement on any related Loan Combination Master Servicer
Remittance Date) the respective shares of the holders of the Mortgage Loans
or any REO Mortgage Loans contained in the subject Serviced Loan
Combination of the cost of recording of the related Co-Lender Agreement in
accordance with such Co-Lender Agreement;
(xv) to pay for the cost of recording this Agreement and the cost
of any corresponding Opinion of Counsel, insofar as such recordation is for
the benefit of the holders of
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the Mortgage Loans or any successor REO Mortgage Loans contained in the
subject Serviced Loan Combination, any such payment (as and to the extent
provided in the related Co-Lender Agreement) to be made pursuant to this
clause (xv) out of: first, to the maximum extent permitted under the
related Co-Lender Agreement, any amounts on deposit in the related Loan
Combination Custodial Account that would otherwise be distributable under
the related Co-Lender Agreement to the related Non-Trust Mortgage Loan
Noteholder(s) as collections of interest on and/or principal of, or any
other relevant amounts with respect to, the Non-Trust Mortgage Loan(s)
included in the subject Serviced Loan Combination or any successor REO
Mortgage Loan(s) with respect thereto, with such payment to be deducted (if
and to the extent so provided in the related Co-Lender Agreement) from such
amounts otherwise so distributable; and, second, any remaining amounts on
deposit in the related Loan Combination Custodial Account that would
otherwise be distributable under the related Co-Lender Agreement to the
holders of the Mortgage Loans comprising the subject Serviced Loan
Combination or any successor REO Mortgage Loans with respect thereto (with,
if and to the extent applicable under the related Co-Lender Agreement, a
corresponding allocation of the remaining portion of such costs and the
payment thereof to one or more of the Mortgage Loans comprising the subject
Serviced Loan Combination or any successor REO Mortgage Loans with respect
thereto, and a corresponding deduction of the remaining portion of such
costs from such remaining amounts otherwise so distributable under the
related Co-Lender Agreement to one or more of the respective holders of the
Mortgage Loans comprising the subject Serviced Loan Combination or any
successor REO Mortgage Loans with respect thereto, all in accordance with
the related Co-Lender Agreement, and taking into account the subordination
of the Non-Trust Mortgage Loan(s) included in the subject Serviced Loan
Combination or any successor REO Mortgage Loan(s) with respect thereto);
(xvi) to the extent (A) consistent with the Co-Lender Agreement
for the subject Serviced Loan Combination and (B) not otherwise included
among the payments contemplated by clause (i) above of this Section 3.05A,
to transfer to the Pool Custodial Account the aggregate of all Additional
Trust Fund Expenses and/or any other amounts relating to the subject
Serviced Loan Combination, that have been previously paid out of the Pool
Custodial Account pursuant to Section 3.05(a) and that, if not previously
paid out of the Pool Custodial Account in accordance with Section 3.05(a),
would have been otherwise payable from such Loan Combination Custodial
Account under this Section 3.05A;
(xvii) if the related Co-Lender Agreement permits any related
Non-Trust Mortgage Loan Noteholder to cure defaults under the Trust
Mortgage Loan included in the subject Serviced Loan Combination, to
reimburse any amounts paid by the applicable Non-Trust Mortgage Loan
Noteholder in connection with exercising such cure rights, such Non-Trust
Mortgage Loan Noteholder's right to reimbursement under this clause (xvii)
to be limited to amounts on deposit in the related Loan Combination
Custodial Account that represent collections on the subject Serviced Loan
Combination that are specifically allocable to such reimbursement in
accordance with the related Co-Lender Agreement; and
(xviii) to clear and terminate such Loan Combination Custodial
Account at the termination of this Agreement pursuant to Section 9.01.
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The Master Servicer shall keep and maintain separate accounting
records in connection with any withdrawal from each Loan Combination Custodial
Account pursuant to clauses (ii) through (xvii of the preceding paragraph.
The Master Servicer shall pay to each of the Special Servicer (or to
third-party contractors at the direction of the Special Servicer), the Trustee
or the Fiscal Agent, as applicable, from each Loan Combination Custodial
Account, amounts permitted to be paid thereto from such account promptly upon
receipt of a written statement of (i) a Servicing Officer of the Special
Servicer or (ii) a Responsible Officer of the Trustee or the Fiscal Agent, as
the case may be, in each case describing the item and amount to which the
Special Servicer (or such third-party contractor), the Trustee or the Fiscal
Agent, as the case may be, is entitled (unless such payment to the Special
Servicer, the Trustee or the Fiscal Agent, as the case may be, is clearly
required pursuant to this Agreement, in which case written statements shall not
be required). The Master Servicer may rely conclusively on any such written
statement and shall have no duty to re-calculate the amounts stated therein. The
parties seeking payment pursuant to this section shall each keep and maintain
separate accounting for the purpose of justifying any request for withdrawal
from each Loan Combination Custodial Account, on a loan-by-loan basis.
In the case of each Serviced Loan Combination, the Master Servicer
shall remit or cause to be remitted to the respective Serviced Non-Trust
Mortgage Loan Noteholder, within one Business Day of the Master Servicer's
receipt thereof, late collections (not including Principal Prepayments) received
on the related Serviced Non-Trust Mortgage Loan subsequent to the related
Determination Date therefor in any particular month (exclusive of any portion of
such amount payable or reimbursable to any third party in accordance in
accordance with this Agreement and the related Co-Lender Agreement), to the
extent such amount is not otherwise included or scheduled to be included in a
normal monthly remittance during such month to such Serviced Non-Trust Mortgage
Loan Noteholder and in respect of which an advance is required to be made or has
been made by a service provider of the related securitization trust.
To the extent (i) consistent with the Co-Lender Agreement for the
related Serviced Loan Combination and (ii) not otherwise included as part of the
normal monthly remittance, the Master Servicer shall transfer from each Loan
Combination Custodial Account to the Pool Custodial Account, promptly upon
amounts for such purposes becoming available in such Loan Combination Custodial
Account, the aggregate of all Additional Trust Fund Expenses and/or any other
amounts relating to such Serviced Loan Combination, that have been previously
paid out of the Pool Custodial Account pursuant to Section 3.05(a) and that, if
not previously paid out of the Pool Custodial Account in accordance with Section
3.05(a), would have been otherwise payable from such Loan Combination Custodial
Account under this Section 3.05A.
In accordance with Article IV of the Co-Lender Agreement for each
Serviced Loan Combination, the Master Servicer shall, on each applicable Loan
Combination Master Servicer Remittance Date, withdraw from the related Loan
Combination Custodial Account and (i) transfer to the Pool Custodial Account all
amounts required to be remitted to the Trust with respect to the Trust Mortgage
Loan included in such Serviced Loan Combination and/or any successor REO Trust
Mortgage Loan with respect thereto, pursuant to the related Co-Lender Agreement,
and (ii) remit to the related Serviced Non-Trust Mortgage Loan Noteholder(s) all
amounts required to be remitted thereto with respect to the Serviced Non-Trust
Mortgage Loan(s) included in such Serviced Loan Combination and/or any successor
REO Mortgage Loan with respect thereto, pursuant to the related Co-Lender
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Agreement. Monthly remittances to the holder(s) of the Non-Trust Mortgage
Loan(s) included in any Serviced Loan Combination and/or any successor REO
Mortgage Loan(s) with respect thereto shall, in each case, be made on the
applicable Loan Combination Master Servicer Remittance Date in accordance with
the reasonable instructions of such respective holder(s), including as to the
method of payment (which shall be by wire transfer of immediately available
funds, if so requested).
SECTION 3.06. Investment of Funds in the Collection Account, the
Servicing Accounts, the Reserve Accounts, the Defeasance
Deposit Account, the Custodial Accounts, the REO
Accounts, the Interest Reserve Account and the Excess
Liquidation Proceeds Account.
(a) (i) The Master Servicer may direct in writing any depository
institution maintaining a Servicing Account, a Reserve Account, the Defeasance
Deposit Account or a Custodial Account (any of the foregoing accounts listed in
this clause (i), a "Master Servicer Account"), (ii) the Special Servicer may
direct in writing any depository institution maintaining an REO Account, and
(iii) the Trustee may direct (pursuant to a standing order or otherwise) any
depository institution maintaining the Collection Account, the Interest Reserve
Account or the Excess Liquidation Proceeds Account (any of the foregoing
accounts listed in this clause (iii), a "Trustee Account"; and any of the Master
Servicer Accounts, the REO Accounts and Trustee Accounts, an "Investment
Account"), to invest, or if it is such depository institution, may itself
invest, the funds held therein (other than, in the case of the Pool Custodial
Account and the Collection Account, the Initial Deposits) in one or more
Permitted Investments bearing interest or sold at a discount, and maturing,
unless payable on demand, (x) no later than the Business Day immediately
preceding the next succeeding date on which such funds are required to be
withdrawn from such account pursuant to this Agreement or (y) if and to the
extent that the depository institution maintaining such Investment Account is
the obligor on such investment, no later than the time and date as of which such
funds are required to be withdrawn from such account pursuant to this Agreement
(but in any event prior to distributions on the Certificates or any transfers to
another Investment Account being made on or before the related Distribution
Date); provided that in the case of any Servicing Account, any Reserve Account
or the Defeasance Deposit Account, such investment direction shall be subject to
the related loan documents and applicable law.
All such Permitted Investments shall be held to maturity, unless
payable on demand. Any investment of funds in an Investment Account shall be
made in the name of the Trustee (in its capacity as such) and, in the case of a
Permitted Investment in any Investment Account solely related to a Serviced Loan
Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s). The
Master Servicer (with respect to Permitted Investments of amounts in the Master
Servicer Accounts) and the Special Servicer (with respect to Permitted
Investments of amounts in the REO Accounts), on behalf of the Trustee and, in
the case of any Investment Account solely related to a Serviced Loan
Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s), or the
Trustee in its capacity as such (in the case of any Trustee Account), shall (i)
be the "entitlement holder" of any Permitted Investment that is a "security
entitlement" and (ii) maintain "control" of any Permitted Investment that is a
"certificated security", "uncertificated security" or "deposit account". The
Trustee hereby designates the Master Servicer (with respect to Permitted
Investments of amounts in the Master Servicer Accounts) and the Special Servicer
(with respect to Permitted Investments of amounts in the REO Accounts), as
applicable, as the Person that shall be the "entitlement holder" and maintain
"control" as set forth under clauses (i) and (ii) above. For purposes of this
Section 3.06(a), (i) the terms "entitlement holder", "security entitlement",
"control" (except with respect to deposit accounts),
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"certificated security" and "uncertificated security" shall have the meanings
given such terms in Revised Article 8 (1994 Revision) of the UCC, and the terms
"control" (with respect to deposit accounts) and "deposit account" shall have
the meanings given such terms in Revised Article 9 (1998 Revision) of the UCC,
and (ii) "control" of any Permitted Investment in any Investment Account by the
Master Servicer or the Special Servicer shall constitute "control" by a Person
designated by, and acting on behalf of, the Trustee and, in the case of any
Investment Account solely related to a Serviced Loan Combination, the related
Serviced Non-Trust Mortgage Loan Noteholder(s), for purposes of Revised Article
8 (1994 Revision) of the UCC or Revised Article 9 (1998 Revision) of the UCC, as
applicable. If amounts on deposit in an Investment Account are at any time
invested in a Permitted Investment payable on demand, the Master Servicer (in
the case of any Master Server Account), the Special Servicer (in the case of the
REO Accounts) or the Trustee (in the case of any Trustee Account) shall:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an amount
equal to at least the lesser of (1) all amounts then payable
thereunder and (2) the amount required to be withdrawn on such
date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer, the Special Servicer or the
Trustee, as the case may be, that such Permitted Investment would
not constitute a Permitted Investment in respect of funds
thereafter on deposit in the Investment Account.
(b) Whether or not the Master Servicer directs the investment of funds
in any of the Master Servicer Accounts, interest and investment income realized
on funds deposited therein, to the extent of the Net Investment Earnings, if
any, for each such Investment Account for each related Investment Period (and,
in the case of Servicing Accounts, Reserve Accounts and the Defeasance Deposit
Account, to the extent not otherwise payable to Mortgagors under applicable law
or the related loan documents), shall be for the sole and exclusive benefit of
the Master Servicer and shall be subject to its withdrawal in accordance with
Section 3.03(a), 3.03(d), 3.04(a), 3.04A(b), 3.05(a) or 3.05A, as applicable.
Whether or not the Special Servicer directs the investment of funds in any of
the REO Accounts, interest and investment income realized on funds deposited
therein, to the extent of the Net Investment Earnings, if any, for such
Investment Account for each related Investment Period, shall be for the sole and
exclusive benefit of the Special Servicer and shall be subject to its withdrawal
in accordance with Section 3.16(b). Whether or not the Trustee directs the
investment of funds in any of the Trustee Accounts, interest and investment
income realized on funds deposited therein, to the extent of the Net Investment
Earnings, if any, for such Investment Account for each related Investment
Period, shall be for the sole and exclusive benefit of the Trustee and shall be
subject to its withdrawal in accordance with Section 3.05(b), 3.05(c) or
3.05(d), as the case may be. If any loss shall be incurred in respect of any
Permitted Investment on deposit in any Investment Account, the Master Servicer
(in the case of (i) the Servicing Accounts, the Reserve Accounts and the
Defeasance Deposit Account (except to the extent that any investment of funds
with respect thereto is at the direction of a Mortgagor in accordance with the
related loan documents or applicable law) and (ii) the Custodial Accounts), the
Special Servicer (in the case of the REO Accounts) and the Trustee (in the case
of any Trustee Account) shall promptly deposit therein from its own funds,
without right of reimbursement, no later than the end of the related Investment
Period, during which such loss was incurred, the amount of the Net Investment
Loss, if any, for such Investment Account for such Investment Period.
Notwithstanding any of the foregoing provisions of this Section 3.06, no party
shall be required under this Agreement to deposit any
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loss on a deposit of funds in an Investment Account if such loss is incurred
solely as a result of the insolvency of the federal or state chartered
depository institution or trust company with which such deposit was maintained
so long as such depository institution or trust company satisfied the conditions
set forth in the definition of "Eligible Account" at the time such deposit was
made and also as of a date no earlier than 30 days prior to the insolvency.
(c) Except as expressly provided otherwise in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Trustee may, and subject to Section 8.02, upon the request of
the Certificateholders entitled to a majority of the Voting Rights allocated to
any Class, shall take such action as may be appropriate to enforce such payment
or performance, including the institution and prosecution of appropriate
proceedings.
(d) Notwithstanding the investment of funds held in any Investment
Account, for purposes of the calculations hereunder, including the calculation
of the Available Distribution Amount and the Master Servicer Remittance Amount,
the amounts so invested shall be deemed to remain on deposit in such Investment
Account.
(e) Notwithstanding the foregoing, the Initial Deposits shall remain
uninvested.
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage; Environmental Insurance.
(a) The Master Servicer shall use reasonable efforts, consistent with
the Servicing Standard, to cause to be maintained for each Mortgaged Property
that secures a Serviced Mortgage Loan and is not an REO Property, all insurance
coverage as is required under the related Mortgage Loan (except to the extent
that the failure to maintain such insurance coverage is an Acceptable Insurance
Default); provided that, if and to the extent that any such Mortgage permits the
holder thereof any discretion (by way of consent, approval or otherwise) as to
the insurance coverage that the related Mortgagor is required to maintain, the
Master Servicer or Special Servicer, as the case may be, shall exercise such
discretion in a manner consistent with the Servicing Standard; and provided,
further, that, if and to the extent that a Mortgage so permits, the Master
Servicer or Special Servicer, as the case may be, shall use reasonable efforts
to require the related Mortgagor to obtain the required insurance coverage from
Qualified Insurers that, in each case, have the applicable Required Insurer
Rating; and provided, further, that the Master Servicer shall cause to be
maintained, with Qualified Insurers that, in each case, have the applicable
Required Insurer Rating, for any such Mortgaged Property any such insurance that
the related Mortgagor is required but fails to maintain, but only to the extent
that (i) the Trustee (as mortgagee of record on behalf of the Certificateholders
or, in the case of a Mortgaged Property that secures a Serviced Loan
Combination, the Certificateholders and the related Non-Trust Mortgage Loan
Noteholder(s)) has an insurable interest, and (ii) either (A) such insurance is
available at a commercially reasonable rate, or (B) solely in the case of
all-risk insurance or other insurance that covers losses from acts of terrorism,
the failure by the Mortgagor to maintain such insurance has not been determined
by the Special Servicer to constitute an Acceptable Insurance Default. The
related Serviced Loan Combination Controlling Party (in the case of a Mortgaged
Property that secures a Serviced Loan Combination) or the Controlling Class
Representative (in the case of any other Mortgaged Property securing a Serviced
Mortgage Loan) may request that earthquake insurance be secured for such
Mortgaged Property by the related Mortgagor, to the extent that (i) such
insurance may
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be obtained at a commercially reasonable price and (ii) the related loan
documents and applicable law give the mortgagee the right to request such
insurance coverage and such loan documents require the Mortgagor to obtain
earthquake insurance at the request of the mortgagee. Subject to Section
3.17(a), the Special Servicer, in accordance with the Servicing Standard, shall
also cause to be maintained for each Administered REO Property no less insurance
coverage than was previously required of the Mortgagor under the related
Mortgage; provided that such insurance is available at commercially reasonable
rates and the subject hazards are at the time commonly insured against for
properties similar to the subject Administered REO Property located in or around
the region in which such Administered REO Property is located (or, in the case
of all-risk insurance or other insurance that covers acts of terrorism, either
such insurance is available at a commercially reasonable rate or, based upon due
inquiry in accordance with the Servicing Standard, the subject hazards are at
the time commonly insured against for properties similar to the subject
Administered REO Property located in or around the region in which such
Administered REO Property is located); and provided, further, that all such
insurance shall be obtained from Qualified Insurers that, in each case, shall
have the applicable Required Insurer Rating. All such insurance policies shall
contain (if they insure against loss to property and do not relate to an REO
Property) a "standard" mortgagee clause, with loss payable to the Master
Servicer (in the case of insurance maintained in respect of Serviced Mortgage
Loans, including Specially Serviced Mortgage Loans), and shall be in the name of
the Special Servicer (in the case of insurance maintained in respect of
Administered REO Properties), on behalf of the Trustee. If the Special Servicer
is in the process of making a determination, in the case of all-risk insurance
or other insurance that covers losses from acts of terrorism, as to whether the
failure by the Mortgagor under any Mortgage Loan to maintain such insurance
constitutes an Acceptable Insurance Default, then, during the period of such
evaluation by the Special Servicer, the Master Servicer shall not be liable for
any loss related to its failure to require the related Mortgagor to maintain
terrorism insurance and shall not be in default of its obligations hereunder as
a result of such failure to maintain terrorism insurance provided that the
Master Servicer used reasonable efforts in accordance with the Servicing
Standard required by this Section 3.07(a) to cause such Mortgagor to maintain
such insurance and has given prompt written notice to the Special Servicer of
its determination that it will not be successful in its efforts to cause the
Mortgagor to obtain such insurance, along with its determination, and any
information in its possession, regarding the availability and cost of such
insurance. The Special Servicer shall promptly notify the Master Servicer of
each such determination under this paragraph.
Any amounts collected by the Master Servicer or the Special Servicer
under any such policies (other than amounts to be applied to the restoration or
repair of the related Mortgaged Property or REO Property or amounts to be
released to the related Mortgagor, in each case subject to the rights of any
tenants and ground lessors, as the case may be, and in each case in accordance
with the terms of the related Mortgage and the Servicing Standard) shall be
deposited in the applicable Custodial Account in accordance with Section 3.04(a)
or 3.04A(a), as applicable, in the case of amounts received in respect of a
Serviced Mortgage Loan, or in the applicable REO Account in accordance with
Section 3.16(b), in the case of amounts received in respect of an Administered
REO Property. Any cost incurred by the Master Servicer or the Special Servicer
in maintaining any such insurance (including any earthquake insurance maintained
at the request of a Serviced Loan Combination Controlling Party or the
Controlling Class Representative, as applicable) shall not, for purposes hereof,
including calculating monthly distributions to Certificateholders, be added to
the unpaid principal balance or Stated Principal Balance of the related Serviced
Mortgage Loan(s) or REO Mortgage Loan(s), notwithstanding that the terms of such
loan so permit, but shall be recoverable by the Master Servicer or the Special
Servicer, as applicable, as a Servicing Advance.
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(b) If either the Master Servicer or the Special Servicer shall obtain
and maintain, or cause to be obtained and maintained, a blanket policy or master
force placed policy insuring against hazard losses on all of the Serviced
Mortgage Loans and/or Administered REO Properties that it is required to service
and administer, then, to the extent such policy (i) is obtained from a Qualified
Insurer having (or whose obligations are guaranteed or backed, in writing, by an
entity having) the applicable Required Insurer Rating, and (ii) provides
protection equivalent to the individual policies otherwise required, then the
Master Servicer or the Special Servicer, as the case may be, shall conclusively
be deemed to have satisfied its obligation to cause hazard insurance to be
maintained on the related Mortgaged Properties and/or the subject Administered
REO Properties. Such blanket policy or master force placed policy may contain a
deductible clause (not in excess of a customary amount), in which case the
Master Servicer or the Special Servicer, as appropriate, shall, if there shall
not have been maintained on the related Mortgaged Property or subject
Administered REO Property an individual hazard insurance policy complying with
the requirements of Section 3.07(a), and there shall have been one or more
losses that would have been covered by such individual policy, promptly deposit
into the applicable Custodial Account from its own funds the amount not
otherwise payable under the blanket policy or master force placed policy because
of the deductible clause therein, to the extent that any such deductible exceeds
the deductible limitation that pertained to the related Serviced Mortgage Loan
(or in the absence of any such deductible limitation, the deductible limitation
for an individual policy which is consistent with the Servicing Standard). The
Master Servicer or the Special Servicer, as appropriate, shall prepare and
present, on behalf of itself, the Trustee, the Certificateholders and, in the
case of a Mortgaged Property that secures a Serviced Loan Combination, the
related Non-Trust Mortgage Loan Noteholder(s), claims under any such blanket
policy or master force placed policy in a timely fashion in accordance with the
terms of such policy.
(c) Subject to the third paragraph of this Section 3.07(c), each of
the Master Servicer and the Special Servicer shall at all times during the term
of this Agreement (or, in the case of the Special Servicer, at all times during
the term of this Agreement in which Specially Serviced Mortgage Loans and/or
Administered REO Properties are part of the Trust Fund) keep in force with
Qualified Insurers that in each case have (or whose obligations are in each case
guaranteed or backed, in writing, by an entity that has) the applicable Required
Insurer Rating, a fidelity bond, which fidelity bond shall be in such form and
amount as would permit it to be a qualified Xxxxxx Xxx seller-servicer of
multifamily mortgage loans, or in such other form and amount as would not cause
an Adverse Rating Event with respect to any Class of Certificates (as evidenced
in writing from each Rating Agency). Each of the Master Servicer and the Special
Servicer shall be deemed to have complied with the foregoing provision if an
Affiliate thereof has such fidelity bond coverage and, by the terms of such
fidelity bond, the coverage afforded thereunder extends to the Master Servicer
or the Special Servicer, as the case may be.
Subject to the third paragraph of this Section 3.07(c), each of the
Master Servicer and the Special Servicer shall at all times during the term of
this Agreement (or, in the case of the Special Servicer, at all times during the
term of this Agreement in which Specially Serviced Mortgage Loans and/or
Administered REO Properties are part of the Trust Fund) also keep in force with
Qualified Insurers that in each case have (or whose obligations are in each case
guaranteed or backed, in writing, by an entity that has) the applicable Required
Insurer Rating, a policy or policies of insurance covering loss occasioned by
the errors and omissions of its officers and employees in connection with its
servicing obligations hereunder, which policy or policies shall be in such form
and amount as would permit it to be a qualified Xxxxxx Mae seller-servicer of
multifamily mortgage loans, or in such other
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form and amount as would not cause an Adverse Rating Event with respect to any
Class of Certificates (as evidenced in writing from each Rating Agency). Each of
the Master Servicer and the Special Servicer shall be deemed to have complied
with the foregoing provisions if an Affiliate thereof has such insurance and, by
the terms of such policy or policies, the coverage afforded thereunder extends
to the Master Servicer or the Special Servicer, as the case may be.
Notwithstanding the foregoing, for so long as the long-term debt
obligations of the Master Servicer or Special Servicer (or its direct corporate
parent if such parent is responsible for the obligations of the Master Servicer
or Special Servicer, as applicable), as the case may be, are rated at least "A"
from S&P and "A" from Fitch (or, in the case of any such Rating Agency, such
lower rating as will not result in an Adverse Rating Event with respect to any
Class of Certificates rated by such Rating Agency, as evidenced in writing by
such Rating Agency), such Person may self-insure with respect to the risks
described in this Section 3.07(c).
(d) In the event that either of the Master Servicer or the Special
Servicer has actual knowledge of any event (an "Insured Environmental Event")
giving rise to a claim under any Environmental Insurance Policy in respect of
any Environmentally Insured Mortgage Loan (other than, if applicable, an Outside
Serviced Trust Mortgage Loan) for which the Mortgagor has not filed a claim or
in respect of an Administered REO Property, the Master Servicer shall notify the
Special Servicer if such Mortgage Loan is a Specially Serviced Mortgage Loan,
and the Special Servicer shall notify the Master Servicer in all cases. Upon
becoming aware of such Insured Environmental Event, the Master Servicer, in the
case of a Performing Serviced Mortgage Loan, and the Special Servicer, in the
case of a Specially Serviced Mortgage Loan or an Administered REO Property, in
accordance with the terms of such Environmental Insurance Policy and the
Servicing Standard, shall timely make a claim thereunder with the appropriate
insurer and shall take such other actions necessary under such Environmental
Insurance Policy in order to realize the full value thereof for the benefit of
the Certificateholders. With respect to each Environmental Insurance Policy in
respect of an Environmentally Insured Mortgage Loan (other than, if applicable,
an Outside Serviced Trust Mortgage Loan), the Master Servicer (in the case of
any such Mortgage Loan that is a Performing Serviced Mortgage Loan) and the
Special Servicer (in the case of any such Mortgage Loan that is a Specially
Serviced Mortgage Loan or in the case of an Administered REO Property) shall
each review and familiarize itself with the terms and conditions relating to
enforcement of claims and shall, in the event the Master Servicer or the Special
Servicer has actual knowledge of an Insured Environmental Event giving rise to a
claim under such policy, monitor the dates by which any claim must be made or
any action must be taken under such policy to realize the full value thereof for
the benefit of the Certificateholders.
The Master Servicer (in the case of Performing Serviced Mortgage
Loans) and the Special Servicer (in the case of Specially Serviced Mortgage
Loans and Administered REO Properties) shall each abide by the terms and
conditions precedent to payment of claims under the Environmental Insurance
Policies with respect to the Environmentally Insured Mortgage Loans (other than,
if applicable, any Outside Serviced Trust Mortgage Loan) and take all such
actions as may be required to comply with the terms and provisions of such
policies in order to maintain such policies in full force and effect and to make
claims thereunder.
In the event that either the Master Servicer or the Special Servicer
receives notice of a termination of any Environmental Insurance Policy with
respect to an Environmentally Insured Mortgage Loan (other than, if applicable,
an Outside Serviced Trust Mortgage Loan), then the party
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receiving such notice shall, within five (5) Business Days after receipt
thereof, provide written notice of such termination to the other such party and
the Trustee. Upon receipt of such notice, the Master Servicer, with respect to a
Performing Serviced Mortgage Loan, or the Special Servicer, with respect to a
Specially Serviced Mortgage Loan or an Administered REO Property, shall address
such termination in accordance with Section 3.07(a). Any legal fees, premiums or
other out-of-pocket costs incurred in accordance with the Servicing Standard in
connection with enforcing the obligations of the Mortgagor under any
Environmental Insurance Policy or a resolution of such termination of an
Environmental Insurance Policy shall be paid by the Master Servicer and shall be
reimbursable to it as a Servicing Advance.
The Master Servicer (with respect to Performing Serviced Mortgage
Loans) and the Special Servicer (with respect to Specially Serviced Mortgage
Loans) shall monitor the actions, and enforce the obligations, of the related
Mortgagor under each Environmentally Insured Mortgage Loan (other than, if
applicable, an Outside Serviced Trust Mortgage Loan) insofar as such
actions/obligations relate to (i) to the extent consistent with Section 3.07(a),
the maintenance (including, without limitation, any required renewal) of an
Environmental Insurance Policy with respect to the related Mortgaged Property or
(ii) environmental testing or remediation at the related Mortgaged Property.
SECTION 3.08. Enforcement of Alienation Clauses.
(a) If, with respect to any Performing Serviced Mortgage Loan, the
Master Servicer receives a request from a Mortgagor regarding the transfer of
the related Mortgaged Property to, and assumption of such Performing Serviced
Mortgage Loan by, another Person and/or transfers of certain interests in such
Mortgagor (including, without limitation, sales or transfers of the related
Mortgaged Property (in full or in part) or the sale, transfer, pledge or
hypothecation of direct or indirect interests in the related Mortgagor or its
owners) or, in the case of a Performing Serviced Mortgage Loan that by its terms
permits transfer or assumption without the consent of the lender so long as
certain conditions are satisfied, a request by the related Mortgagor for a
determination that such conditions have been satisfied, then the Master Servicer
shall immediately notify the Special Servicer of such request, perform an
underwriting analysis in connection therewith and deliver to the Special
Servicer such underwriting analysis and any documents or other materials that
the Master Servicer shall have received regarding the proposed transfer and, if
applicable, the proposed assumption. The Special Servicer shall have the right
hereunder to, in accordance with the Servicing Standard, withhold or grant
consent to any such request for such transfer and/or assumption and/or to make a
determination as to whether the conditions to transfer or assumption (as
described above) have been satisfied, as applicable, each in accordance with the
terms of the subject Performing Serviced Mortgage Loan and this Agreement;
provided that any grant of consent on the part of the Special Servicer shall be
subject to Section 3.08(d), Section 6.11 and/or Section 6.12, in each case if
and as applicable. If the Special Servicer, in accordance with the Servicing
Standard, (i) withholds or denies its consent to any such request for such
transfer and/or assumption with respect to any Performing Serviced Mortgage Loan
and/or (ii) determines, with respect to any Performing Serviced Mortgage Loan
that by its terms permits transfer or assumption without lender consent so long
as certain conditions are satisfied, that such conditions have not been
satisfied, then in either case the Master Servicer shall not permit the
requested transfer or assumption of such Performing Serviced Mortgage Loan. If
the Special Servicer consents to such proposed transfer and/or assumption and/or
determines that the conditions to transfer or assumption have been satisfied,
the Master Servicer shall process such request of the related Mortgagor; and, in
the case of a transfer of the related Mortgaged Property to, and assumption of
such Performing Serviced Mortgage Loan by, another
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Person, the Master Servicer (subject to Section 3.08(d)) shall be authorized to
enter into an assumption or substitution agreement with the Person, which shall
be a Single Purpose Entity, to whom the related Mortgaged Property has been or
is proposed to be conveyed and/or release the original Mortgagor from liability
under such Performing Serviced Mortgage Loan and substitute as obligor
thereunder the Person to whom the related Mortgaged Property has been or is
proposed to be conveyed; provided, however, that the Master Servicer shall not
enter into any such agreement to the extent that any terms thereof would result
in an Adverse REMIC Event or Adverse Grantor Trust Event or create any lien on a
Mortgaged Property that is senior to, or on parity with, the lien of the related
Mortgage. The Master Servicer shall notify the Trustee, the Special Servicer,
each Rating Agency, the Controlling Class Representative and, in the case of a
Serviced Loan Combination that consists of Performing Serviced Mortgage Loans,
the related Serviced Non-Trust Mortgage Loan Noteholder(s), of any assumption or
substitution agreement executed pursuant to this Section 3.08(a) and shall
forward thereto a copy of such agreement together with a Review Package. Subject
to the terms of the related loan documents, no assumption of a
Cross-Collateralized Mortgage Loan shall be made without the assumption of all
other Serviced Trust Mortgage Loans making up the related Cross-Collateralized
Group. Further, subject to the terms of the related loan documents and
applicable law, no assumption of a Serviced Mortgage Loan shall be made or
transfer of interest in a Mortgagor approved, unless all costs in connection
therewith, including any arising from seeking Rating Agency confirmation, are
paid by the related Mortgagor.
(b) If, with respect to a Specially Serviced Mortgage Loan, the Master
Servicer receives a request from a Mortgagor for consent to a transfer of the
related Mortgaged Property and assumption of such Specially Serviced Mortgage
Loan and/or consent to a transfer of interests in the related Mortgagor
(including, without limitation, sales or transfers of the related Mortgaged
Property (in full or in part) or the sale, transfer, pledge or hypothecation of
direct or indirect interests in the related Mortgagor or its owners) or in the
case of a Specially Serviced Mortgage Loan that by its terms permits transfer or
assumption without the consent of the lender so long as certain conditions are
satisfied, a request by the related Mortgagor for a determination that such
conditions have been satisfied, the Master Servicer shall immediately notify the
Special Servicer of such request and deliver to the Special Servicer any
documents that the Master Servicer shall have received regarding the proposed
transfer and assumption. Subject to Section 3.08(d), Section 6.11 and/or Section
6.12, in each case if and as applicable, the Special Servicer shall determine
whether to grant such consent, whether the conditions to transfer or assumption
(as described above) have been satisfied and/or whether to enforce any
restrictions on such transfer and/or assumption contained in the related loan
documents, as applicable, each in accordance with the Servicing Standard.
Upon consent by the Special Servicer to any proposed transfer of a
Mortgaged Property and assumption by the proposed transferee of the related
Serviced Mortgage Loan pursuant to this Section 3.08(b), the Special Servicer
shall process the request of the related Mortgagor for such transfer and
assumption and shall be authorized to enter into an assumption or substitution
agreement with the Person, which shall be a Single Purpose Entity, to whom the
related Mortgaged Property has been or is proposed to be conveyed and/or release
the original Mortgagor from liability under the related Serviced Mortgage Loan
and substitute as obligor thereunder the Person to whom the related Mortgaged
Property has been or is proposed to be conveyed; provided, however, that the
Special Servicer shall not enter into any such agreement to the extent that any
terms thereof would result in an Adverse REMIC Event or Adverse Grantor Trust
Event or create any lien on a Mortgaged Property that is senior to, or on parity
with, the lien of the related Mortgage. The Special Servicer shall notify the
Trustee, the Master Servicer, each Rating Agency, the Controlling Class
Representative and, with respect to a Serviced Loan
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Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s), of any
assumption or substitution agreement executed pursuant to this Section 3.08(b)
and shall forward thereto a copy of such agreement. Subject to the terms of the
related loan documents, no assumption of a Cross-Collateralized Mortgage Loan
shall be made without the assumption of all other Serviced Trust Mortgage Loans
making up the related Cross-Collateralized Group. Further, subject to the terms
of the related loan documents and applicable law, no assumption of a Serviced
Mortgage Loan shall be made unless all costs in connection therewith, including
any arising from seeking Rating Agency confirmation, are paid by the related
Mortgagor.
As used in this Section 3.08, the terms "sale" and "transfer" shall
include the matters contemplated by the parentheticals in the first sentence of
Section 3.08(a).
(c) If, with respect to a Performing Serviced Mortgage Loan, the
Master Servicer receives a request from the related Mortgagor regarding a
further encumbrance of the related Mortgaged Property or of an interest in the
related Mortgagor (including, without limitation, any mezzanine financing of the
related Mortgagor or any direct or indirect owners of the related Mortgagor or
the Mortgaged Property or any sale, issuance or transfer of preferred equity in
the Mortgagor or its owners or, in the case of a Performing Serviced Mortgage
Loan that by its terms permits further encumbrance without the consent of the
lender provided certain conditions are satisfied, a request by the related
Mortgagor for a determination that such conditions have been satisfied), then
the Master Servicer shall promptly obtain relevant information for purposes of
evaluating such request. If the Master Servicer determines, consistent with the
Servicing Standard, to approve such further encumbrance or that the conditions
precedent to such further encumbrance have been satisfied, as applicable, then
the Master Servicer shall provide to the Special Servicer a written copy of such
recommendation (which shall include the reason therefor) and the materials upon
which such recommendation is based. The Special Servicer shall have the right
hereunder, within 15 days (or, in the case of a consent to a determination as to
whether the conditions precedent to a further encumbrance have been satisfied,
within 10 days) of receipt of such recommendation and supporting materials and
any other materials reasonably requested by the Special Servicer, to reasonably
withhold or, subject to Section 3.08(d) and, further, subject to the Special
Servicer obtaining any consent to the extent required pursuant to Section 6.11
and/or Section 6.12, in each case if and as applicable, grant consent to any
such request for such further encumbrance of the related Mortgaged Property or
of an interest in the related Mortgagor or to object or consent to the
determination by the Master Servicer as to whether the conditions to further
encumbrance (as described above) have been satisfied, as applicable, each in
accordance with the terms of such Performing Serviced Mortgage Loan and this
Agreement and subject to the Servicing Standard. If the Special Servicer does
not respond within such 15-day period or 10-day period, as applicable, such
party's consent shall be deemed granted. If the Special Servicer consents or is
deemed to have consented to such further encumbrance of the related Mortgaged
Property or of an interest in the related Mortgagor, as applicable, the Master
Servicer shall process such request of the related Mortgagor. If the Special
Servicer does not consent to, and is not deemed to have consented to, such
further encumbrance, then the Master Servicer, on behalf of the Trustee (as
mortgagee of record on behalf of the Certificateholders and, with respect to a
Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan
Noteholder(s)) shall, to the extent permitted by applicable law, enforce the
restrictions contained in the related loan documents on further encumbrances of
the related Mortgaged Property and/or of an interest in the related Mortgagor,
as applicable. To the extent permitted by the applicable loan documents and
applicable law, the Master Servicer may charge the related Mortgagor (and retain
to the extent permitted
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under Section 3.11) a fee in connection with any enforcement or waiver
contemplated in this paragraph of subsection (c).
With respect to any Specially Serviced Mortgage Loan, the Special
Servicer, on behalf of the Trustee (as mortgagee of record on behalf of the
Certificateholders and, in the case of a Mortgaged Property that secures a
Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan
Noteholder(s)) shall, to the extent permitted by applicable law, enforce the
restrictions contained in the related loan documents on further encumbrances of
the related Mortgaged Property and/or of interests in the related Mortgagor, as
applicable, and shall, with respect to Specially Serviced Mortgage Loans that by
their terms permit further encumbrance without mortgagee consent so long as
certain conditions are satisfied, make all determinations as to whether such
conditions have been satisfied, and shall process all documentation in
connection therewith, unless the Special Servicer has determined, in its
reasonable, good faith judgment, that waiver of such restrictions or such
conditions, as the case may be, would be in accordance with the Servicing
Standard (as evidenced by an Officer's Certificate setting forth the basis for
such determination delivered to the Trustee, the Master Servicer, each Rating
Agency and, with respect to a Serviced Loan Combination, the related Serviced
Non-Trust Mortgage Loan Noteholder(s)); provided that any such waiver of such
restrictions shall be subject to Section 3.08(d) and Section 6.11 and/or Section
6.12, in each case if and as applicable. To the extent permitted by the
applicable loan documents and applicable law, the Special Servicer may charge
the related Mortgagor (and retain to the extent permitted under Section 3.11) a
fee in connection with any enforcement or waiver contemplated in this paragraph
of subsection (c).
If the Special Servicer, in accordance with the Servicing Standard,
objects to the determination by the Master Servicer with respect to a Performing
Serviced Mortgage Loan (which by its terms permits further encumbrance without
lender consent provided certain conditions are satisfied) that such conditions
have been satisfied, then the Master Servicer shall not permit the requested
further encumbrance of such Performing Serviced Mortgage Loan. If the Special
Servicer, in accordance with the Servicing Standard, determines with respect to
any other Serviced Mortgage Loan (which by its terms permits further encumbrance
without lender consent provided certain conditions are satisfied) that such
conditions have not been satisfied, then the Master Servicer shall not permit
further encumbrance of such Serviced Mortgage Loan.
As used in this Section 3.08, the term "encumbrance" shall include the
matters contemplated by the parentheticals in the first sentence of this Section
3.08(c).
(d) Notwithstanding anything to the contrary contained in this Section
3.08, but subject to the related loan documents and applicable law: (i) if (A)
the then unpaid principal balance of the subject Serviced Trust Mortgage Loan is
at least equal to the lesser of (1) $35,000,000 and (2) 5% of the then aggregate
principal balance of the Mortgage Pool or (B) the subject Serviced Trust
Mortgage Loan is then one of the ten largest Trust Mortgage Loans in the
Mortgage Pool, then neither the Master Servicer nor the Special Servicer, as
applicable, shall waive any restrictions contained in the related Mortgage on
transfers of the related Mortgaged Property or on transfers of interests in the
related Mortgagor, and (ii) if (W) the then unpaid principal balance of the
subject Serviced Trust Mortgage Loan is at least equal to the lesser of (1)
$20,000,000 and (2) 2% of the then aggregate principal balance of the Mortgage
Pool or (X) the subject Serviced Trust Mortgage Loan is then one of the ten
largest Trust Mortgage Loans in the Mortgage Pool or (Y) the aggregate
loan-to-value ratio of the subject Serviced Trust Mortgage Loan (together with
any additional loans that would further encumber the
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related Mortgaged Property and/or interests in the related Mortgagor) would be
equal to or greater than 85% or (Z) the aggregate debt service coverage ratio of
the related Mortgaged Property (taking into account any additional loans that
would further encumber the related Mortgaged Property and/or interests in the
related Mortgagor) would be less than 1.20x, then neither the Special Servicer
nor the Master Servicer shall waive any restrictions contained in the related
Mortgage on further encumbrances of the related Mortgaged Property or of
interests in the related Mortgagor, unless, in the case of either (i) or (ii)
above, the Master Servicer or the Special Servicer, as the case may be, shall
have received prior written confirmation from each Rating Agency that such
action would not result in an Adverse Rating Event with respect to any Class of
Certificates rated by such Rating Agency. Neither the Master Servicer nor the
Special Servicer has the authority to perform any of the actions set forth above
in this paragraph with respect to an Outside Serviced Trust Mortgage Loan. In
connection with any request for rating confirmation from a Rating Agency
pursuant to this paragraph of Section 3.08(d), the Master Servicer or the
Special Servicer, as the case may be, shall deliver a Review Package to such
Rating Agency. Further, subject to the terms of the related loan documents and
applicable law, no waiver of a restriction contained in the related Mortgage on
transfers of the related Mortgaged Property or interests in the related
Mortgagor or on further encumbrances thereof may be waived by the Master
Servicer or the Special Servicer, as applicable, unless all costs in connection
therewith, including any arising from seeking Rating Agency confirmation, are
paid by the related Mortgagor. To the extent not collected from the related
Mortgagor (or from the Depositor or the UBS Mortgage Loan Seller pursuant to
Section 2.03), any rating agency charges in connection with the foregoing shall
be paid by the Master Servicer as a Servicing Advance.
Notwithstanding the foregoing, with respect to any Outside Serviced
Trust Mortgage Loan, in the event that any action set forth in clause (i) or
(ii) of the first sentence of the preceding paragraph regarding such Trust
Mortgage Loan would require written confirmation from a Rating Agency that such
action would not result in an Adverse Rating Event with respect to any Class of
Certificates rated by such Rating Agency in accordance with clause (i) or (ii)
of the first sentence of the preceding paragraph if such Trust Mortgage Loan
were a Serviced Trust Mortgage Loan, then the Controlling Class Representative
shall not consent to a waiver of any restrictions contained in the related
Mortgage on transfers of the related Mortgaged Property or on transfers of
interests in the related Mortgagor or to a waiver of any restrictions contained
in the related Mortgage on further encumbrances of the related Mortgaged
Property or of interests in the related Mortgagor, in each case to the extent it
is permitted to do so under the related Outside Servicing Agreement and/or the
related Co-Lender Agreement, unless it has obtained written confirmation from
each Rating Agency that such action would not result in an Adverse Rating Event
with respect to any Class of Certificates rated by such Rating Agency. Upon
being asked to consent to any action set forth in the preceding sentence (i) if
the party initially in receipt of such request for consent is the Controlling
Class Representative, the Controlling Class Representative shall request from
the Master Servicer, and the Master Servicer shall thereupon provide, a
determination to the Controlling Class Representative as to, and (ii) if the
party initially in receipt of such request for consent is the Master Servicer,
the Master Servicer shall forward such request to the Controlling Class
Representative together with a determination as to, and (iii) if the party
initially in receipt of such request for consent is the Special Servicer, the
Special Servicer shall forward such request to the Master Servicer and the
Controlling Class Representative, and the Master Servicer shall thereupon
provide a determination to the Controlling Class Representative as to, in the
case of (i), (ii) and (iii) above, whether such action would require written
confirmation from each Rating Agency that such action would not result in an
Adverse Rating Event with respect to any Class of Certificates rated by such
Rating Agency in accordance with clause (i) or clause (ii) of the first sentence
of the preceding
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paragraph if such Trust Mortgage Loan were a Serviced Trust Mortgage Loan (and
the Controlling Class Representative shall be entitled to conclusively rely on
such determination by the Master Servicer). Further, subject to the terms of the
related loan documents and applicable law, the Controlling Class Representative
shall not consent to a waiver of any restrictions contained in the related
Mortgage on transfers of the related Mortgaged Property or on transfers of
interests in the related Mortgagor or to a waiver of any restrictions contained
in the related Mortgage on further encumbrances of the related Mortgaged
Property or of interests in the related Mortgagor, unless all costs in
connection therewith, including any arising from seeking Rating Agency
confirmation, are paid by the related Mortgagor. To the extent not payable by
and collected from the related Mortgagor, any rating agency charges in
connection with the foregoing shall be paid by the Master Servicer by
withdrawing the amount of such charges from the Pool Custodial Account.
If and to the extent that any expenses paid by the Master Servicer in
connection with the actions contemplated by this Section 3.08(d) would result in
the failure of any one or more Holder(s) of Regular Interest Certificates to
receive any amount of principal or interest at the related Pass-Through Rate to
which such Holder(s) are entitled (in each case by the time any such amounts are
due and payable to such Holder(s)), then such amounts shall be deemed to have
been distributed to such Holder(s) from REMIC III, as of the time paid by the
Master Servicer, and then paid by such Holder(s) and not by any of the REMIC
Pools.
SECTION 3.09. Realization Upon Defaulted Mortgage Loans; Required
Appraisals; Appraisal Reduction Calculation.
(a) The Special Servicer shall, subject to Sections 3.09(b), 3.09(c),
3.09(d), 6.11 and 6.12, exercise reasonable efforts, consistent with the
Servicing Standard, to foreclose upon or otherwise comparably convert the
ownership of 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, including
pursuant to Section 3.20; provided that neither the Master Servicer nor the
Special Servicer shall, with respect to any Serviced Mortgage Loan that
constitutes an ARD Mortgage Loan after its Anticipated Repayment Date, take any
enforcement action with respect to the payment of Additional Interest (other
than the making of requests for its collection) unless (i) the taking of an
enforcement action with respect to the payment of other amounts due under such
ARD Mortgage Loan is, in the good faith and reasonable judgment of the Special
Servicer, necessary, appropriate and consistent with the Servicing Standard or
(ii) all other amounts due under such ARD Mortgage Loan have been paid, the
payment of such Additional Interest has not been forgiven in accordance with
Section 3.20 and, in the good faith and reasonable judgment of the Special
Servicer, the Liquidation Proceeds expected to be recovered in connection with
such enforcement action will cover the anticipated costs of such enforcement
action and, if applicable, any associated interest accrued on Advances. Subject
to Section 3.11(h), the Special Servicer shall request that the Master Servicer
advance all costs and expenses incurred by it in any such proceedings, and the
Master Servicer shall be entitled to reimbursement therefor as provided in
Section 3.05(a) or Section 3.05A, as applicable. The Special Servicer shall be
responsible, consistent with the Servicing Standard, for determining whether to
exercise any rights it may have under the cross-collateralization and/or
cross-default provisions of a Cross-Collateralized Mortgage Loan. Nothing
contained in this Section 3.09 shall be construed so as to require the Special
Servicer, on behalf of the Certificateholders and, in the case of a Mortgaged
Property that secures a Serviced Loan Combination, on behalf of the affected
Serviced Non-Trust Mortgage Loan Noteholder(s), to make a bid on any Mortgaged
Property at a
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foreclosure sale or similar proceeding that is in excess of the fair market
value of such property, as determined by the Special Servicer in its reasonable
and good faith judgment taking into account the factors described in Section
3.18 and the results of any appraisal obtained as provided below in this Section
3.09, all such bids to be made in a manner consistent with the Servicing
Standard.
If and when the Master Servicer or the Special Servicer deems it
necessary and prudent for purposes of establishing the fair market value of any
Mortgaged Property securing a Specially Serviced Mortgage Loan, whether for
purposes of bidding at foreclosure or otherwise, it may have an appraisal
performed with respect to such property by an Independent Appraiser or other
expert in real estate matters, which appraisal shall take into account the
factors specified in Section 3.18, and the cost of which appraisal shall be
covered by, and be reimbursable as, a Servicing Advance; provided that if the
Master Servicer intends to obtain an appraisal in connection with the foregoing,
the Master Servicer shall so notify the Special Servicer and consult with the
Special Servicer regarding such appraisal.
If any Serviced Mortgage Loan or Serviced Loan Combination becomes a
Required Appraisal Loan, then the Special Servicer shall (i) obtain or conduct,
as applicable, a Required Appraisal within 60 days (or, in the case of a
Serviced Loan Combination, such shorter time period (if any) as may be required
under the related Co-Lender Agreement) of such occurrence (unless a Required
Appraisal was obtained or conducted, as applicable, with respect to such
Required Appraisal Loan within the prior 12 months and the Special Servicer
reasonably believes, in accordance with the Servicing Standard, that no material
change has subsequently occurred with respect to the related Mortgaged Property
that would draw into question the applicability of such Required Appraisal) and
(ii) obtain or conduct, as applicable, an update of the most recent Required
Appraisal approximately 12 months following the most recent Required Appraisal
or subsequent update thereof for so long as such Serviced Mortgage Loan (or any
successor REO Mortgage Loan with respect thereto) or such Serviced Loan
Combination, as the case may be, remains a Required Appraisal Loan. The Special
Servicer shall deliver copies of all such Required Appraisals and updated
Required Appraisals to the Trustee, the Master Servicer and, in the case of a
Mortgaged Property that secures a Serviced Loan Combination, the related
Non-Trust Mortgage Loan Noteholder(s), in each such case, promptly following the
Special Servicer's receipt of the subject appraisal, and, upon request, to the
Controlling Class Representative. Based on each such Required Appraisal and
updated Required Appraisal, the Special Servicer shall (monthly, on each related
Determination Date, until the subject Required Appraisal Loan ceases to be such)
calculate and notify the Trustee, the Master Servicer, the Controlling Class
Representative, and, in the case of any Mortgaged Property that secures a
Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan
Noteholder(s), of any resulting Appraisal Reduction Amount in respect of the
subject Required Appraisal Loan. Such calculations by the Special Servicer shall
be subject to review and confirmation by the Master Servicer, provided that the
Master Servicer may rely on any information provided by the Special Servicer.
The Master Servicer shall, at the direction of the Special Servicer, advance the
cost of each such Required Appraisal and updated Required Appraisal; provided,
however, that such expense will be subject to reimbursement to the Master
Servicer as a Servicing Advance out of the related Custodial Account pursuant to
Section 3.05(a) or Section 3.05A, as applicable. At any time that an Appraisal
Reduction Amount exists with respect to any Required Appraisal Loan, the related
Serviced Loan Combination Controlling Party (in the case of a Serviced Loan
Combination or related REO Property) or the Controlling Class Representative (in
all other cases involving a Serviced Mortgage Loan or an Administered REO
Property), as applicable, may, at its own expense, obtain and deliver to the
Master Servicer, the Special Servicer and the Trustee an appraisal that is
reasonably satisfactory to the Special Servicer and satisfies the requirements
of a "Required Appraisal", and upon the written
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request of the related Serviced Loan Combination Controlling Party or the
Controlling Class Representative, as applicable, the Special Servicer shall
recalculate the Appraisal Reduction Amount in respect of the subject Required
Appraisal Loan based on such appraisal delivered by such party and shall notify
the Trustee, the Master Servicer, the Controlling Class Representative and, in
the case of a Serviced Loan Combination, the related Serviced Loan Combination
Controlling Party, of such recalculated Appraisal Reduction Amount.
(b) Notwithstanding any other provision of this Agreement, no
Mortgaged Property shall be acquired by the Special Servicer on behalf of the
Certificateholders (and, in the case of a Mortgaged Property that secures a
Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan
Noteholder(s)) under such circumstances, in such manner or pursuant to such
terms as would, in the reasonable, good faith judgment of the Special Servicer
(exercised in accordance with the Servicing Standard), (i) cause such Mortgaged
Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code (unless the portion of such Mortgaged Property
that is not treated as "foreclosure property" and that is held by a REMIC Pool
at any given time constitutes not more than a de minimis amount of the assets of
such REMIC Pool within the meaning of Treasury regulations section
1.860D-1(b)(3)(i) and (ii)), or (ii) except as permitted by Section 3.17(a),
subject the Trust Fund to the imposition of any federal income taxes under the
Code. Subject to the foregoing, however, a Mortgaged Property may be acquired
through a single member limited liability company if the Special Servicer
determines that such an action is appropriate to protect the Trust (and, in the
case of a Mortgaged Property that secures a Serviced Loan Combination, the
related Non-Trust Mortgage Loan Noteholder(s)) from potential liability.
In addition, the Special Servicer shall not acquire any personal
property pursuant to this Section 3.09 unless either:
(i) such personal property is, in the reasonable, good faith
judgment of the Special Servicer (exercised in accordance with the
Servicing Standard), incident to real property (within the meaning of
Section 856(e)(1) of the Code) so acquired by the Special Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of
Counsel (the cost of which shall be covered by, and be reimbursable as, a
Servicing Advance) to the effect that the holding of such personal property
as part of the Trust Fund will not cause the imposition of a tax on any
REMIC Pool under the REMIC Provisions or cause any REMIC Pool to fail to
qualify as a REMIC at any time that any Certificate is outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
neither the Master Servicer nor the Special Servicer shall, on behalf of the
Trustee (and, in the case of a Mortgaged Property that secures a Serviced Loan
Combination, on behalf of the related Serviced Non-Trust Mortgage Loan
Noteholder(s)), obtain title to a Mortgaged Property by foreclosure, deed in
lieu of foreclosure or otherwise, or take any other action with respect to any
Mortgaged Property, if, as a result of any such action, the Trustee, on behalf
of the Certificateholders (and, in the case of a Mortgaged Property that secures
a Serviced Loan Combination, on behalf of the related Serviced Non-Trust
Mortgage Loan Noteholder(s)), could, in the reasonable, good faith judgment of
the Special Servicer, exercised in accordance with the Servicing Standard, be
considered to hold title to, to be a "mortgagee-in-possession" of, or to be an
"owner" or "operator" of such Mortgaged Property within the meaning of CERCLA or
any comparable law (a "potentially responsible party"), unless such action is
consistent
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with Section 6.11 and/or Section 6.12, in each case if and as applicable, and
the Special Servicer has previously determined (as evidenced by an Officer's
Certificate to such effect delivered to the Trustee (and, in the case of a
Mortgaged Property that secures a Serviced Loan Combination, to the related
Serviced Non-Trust Mortgage Loan Noteholder(s)) that shall specify all of the
bases for such determination), in accordance with the Servicing Standard and
based on an Environmental Assessment of such Mortgaged Property performed by an
Independent Person, who regularly conducts Environmental Assessments, within six
months prior to any such acquisition of title or other action (a copy of which
Environmental Assessment shall be delivered to the Trustee, the Master Servicer
and, in the case of a Mortgaged Property that secures a Serviced Loan
Combination, on behalf of the related Serviced Non-Trust Mortgage Loan
Noteholder(s)), that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that it would (taking into
account the coverage provided under any related Environmental Insurance
Policy) maximize the recovery on the related Serviced Mortgage Loan to the
Certificateholders (or, if a Serviced Loan Combination is involved, to the
Certificateholders and the related Serviced Non-Trust Mortgage Loan
Noteholder(s)), as a collective whole, on a present value basis (the
relevant discounting of anticipated collections that will be distributable
to Certificateholders (or, if a Serviced Loan Combination is involved, to
the Certificateholders and the related Serviced Non-Trust Mortgage Loan
Noteholder(s)), as a collective whole, to be performed at the related
Mortgage Rate(s)) to acquire title to or possession of the Mortgaged
Property and to take such actions as are necessary to bring the Mortgaged
Property into compliance therewith in all material respects; and
(ii) there are no circumstances or conditions present at the
Mortgaged Property relating to the use, management or disposal of Hazardous
Materials for which investigation, testing, monitoring, containment,
clean-up or remediation could be required under any applicable
environmental laws and regulations or, if such circumstances or conditions
are present for which any such action could reasonably be expected to be
required, that it would (taking into account the coverage provided under
any related Environmental Insurance Policy) maximize the recovery on the
related Serviced Mortgage Loan to the Certificateholders (or, if a Serviced
Loan Combination is involved, to the Certificateholders and the related
Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, on
a present value basis (the relevant discounting of anticipated collections
that will be distributable to Certificateholders (or, if a Serviced Loan
Combination is involved, to the Certificateholders and the related Serviced
Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, to be
performed at the related Mortgage Rate(s)) to acquire title to or
possession of the Mortgaged Property and to take such actions with respect
to the affected Mortgaged Property.
The Special Servicer shall, in good faith, undertake reasonable
efforts to make the determination referred to in the preceding paragraph and may
conclusively rely on the Environmental Assessment referred to above in making
such determination. The cost of any such Environmental Assessment shall be
covered by, and reimbursable as, a Servicing Advance; and if any such
Environmental Assessment so warrants, the Special Servicer shall perform or
cause to be performed such additional environmental testing as it deems
necessary and prudent to determine whether the conditions described in clauses
(i) and (ii) of the preceding paragraph have been satisfied (the cost of any
such additional testing also to be covered by, and reimbursable as, a Servicing
Advance). The cost of any remedial, corrective or other further action
contemplated by clause (i) and/or clause (ii) of the
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preceding paragraph, shall be payable out of the related Custodial Account
pursuant to Section 3.05(a) or Section 3.05A, as applicable (or, in the case of
a Mortgaged Property that secures a Serviced Loan Combination, to the extent the
funds in the applicable Loan Combination Custodial Account are insufficient,
shall be advanced by the Master Servicer, subject to Section 3.11(h)).
(d) If the environmental testing contemplated by Section 3.09(c) above
establishes that any of the conditions set forth in clauses (i) and (ii) of the
first sentence thereof has not been satisfied with respect to any Mortgaged
Property securing a defaulted Serviced Mortgage Loan, the Special Servicer shall
take such action as is in accordance with the Servicing Standard (other than
proceeding against the Mortgaged Property). At such time as it deems
appropriate, the Special Servicer may, on behalf of the Trust (and, if a
Serviced Loan Combination is involved, the related Serviced Non-Trust Mortgage
Loan Noteholder(s)), subject to Section 6.11 and/or Section 6.12, in each case
if and as applicable, release all or a portion of such Mortgaged Property from
the lien of the related Mortgage.
(e) The Special Servicer shall report to the Master Servicer, the
Underwriters, the Trustee and, if a Serviced Loan Combination is involved, the
related Serviced Non-Trust Mortgage Loan Noteholder(s), monthly in writing as to
any actions taken by the Special Servicer with respect to any Mortgaged Property
that represents security for a Specially Serviced Mortgage Loan as to which the
environmental testing contemplated in Section 3.09(c) above has revealed that
any of the conditions set forth in clauses (i) and (ii) of the first sentence
thereof has not been satisfied, in each case until the earlier to occur of
satisfaction of all such conditions and release of the lien of the related
Mortgage on such Mortgaged Property.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, with respect to any Specially Serviced
Mortgage Loan, the advisability of seeking to obtain a deficiency judgment if
the state in which the related Mortgaged Property is located and the terms of
the affected Serviced Mortgage Loan permit such an action, and shall, in
accordance with the Servicing Standard, seek such deficiency judgment if it
deems advisable (the cost of which undertaking shall be covered by, and be
reimbursable as, a Servicing Advance).
(g) The Master Servicer shall, with the reasonable cooperation of the
Special Servicer, prepare and file information returns with respect to the
receipt of mortgage interest received with respect to any Serviced Mortgage Loan
required by Section 6050H of the Code and the reports of foreclosures and
abandonments of any Mortgaged Property (other than any Mortgaged Property that
secures an Outside Serviced Trust Mortgage Loan) and the information returns
relating to cancellation of indebtedness income with respect to any Mortgaged
Property required by Sections 6050J and 6050P of the Code. Such reports shall be
in form and substance sufficient to meet the reporting requirements imposed by
Sections 6050H, 6050J and 6050P of the Code.
(h) As soon as the Special Servicer makes a Final Recovery
Determination with respect to any Specially Serviced Mortgage Loan or
Administered REO Property, it shall promptly notify the Trustee, the Master
Servicer and, if a Serviced Loan Combination is involved, the related Serviced
Non-Trust Mortgage Loan Noteholder(s). The Special Servicer shall maintain
accurate records, prepared by a Servicing Officer, of each such Final Recovery
Determination (if any) and the basis thereof. Each such Final Recovery
Determination (if any) shall be evidenced by an Officer's Certificate delivered
to the Trustee, the Master Servicer and, if a Serviced Loan Combination is
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involved, the related Serviced Non-Trust Mortgage Loan Noteholder(s), no later
than the seventh Business Day following such Final Recovery Determination.
SECTION 3.10. Trustee and Custodian to Cooperate; Release of Mortgage
Files.
(a) Upon the payment in full of any Serviced Mortgage Loan, or the
receipt by the Master Servicer or the Special Servicer of a notification that
payment in full shall be escrowed in a manner customary for such purposes, the
Master Servicer or the Special Servicer shall promptly notify the Trustee and
any related Custodian (and, in the case of a Serviced Non-Trust Mortgage Loan,
the related Serviced Non-Trust Mortgage Loan Noteholder) by a certification
(which certification shall be in the form of a Request for Release in the form
of Exhibit D-1 attached hereto and shall be accompanied by the form of a release
or discharge and shall include a statement to the effect that all amounts
received or to be received in connection with such payment which are required to
be deposited in the applicable Custodial Account pursuant to Section 3.04(a) or
Section 3.04A(a), as applicable, have been or will be so deposited) of a
Servicing Officer (a copy of which certification shall be delivered to the
Special Servicer) and shall request delivery to it of the related Mortgage File
and, in the case of a Serviced Non-Trust Mortgage Loan, the original of the
Mortgage Note for such Serviced Non-Trust Mortgage Loan. Upon receipt of such
certification and request, the Trustee shall release, or cause any related
Custodian to release, the related Mortgage File (and, in the case of a Serviced
Non-Trust Mortgage Loan, the Trustee shall cause the related Serviced Non-Trust
Mortgage Loan Noteholder to release the Mortgage Note for such Serviced
Non-Trust Mortgage Loan) to the Master Servicer or Special Servicer and shall
deliver to the Master Servicer or Special Servicer, as applicable, such release
or discharge, duly executed. No expenses incurred in connection with any
instrument of satisfaction or deed of reconveyance shall be chargeable to the
Collection Account or any Custodial Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Serviced Mortgage Loan, the Master Servicer or the Special
Servicer shall otherwise require any Mortgage File (or any portion thereof) (or
the original of the Mortgage Note for a Serviced Non-Trust Mortgage Loan), the
Trustee, upon request of the Master Servicer and receipt from the Master
Servicer of a Request for Release in the form of Exhibit D-1 attached hereto
signed by a Servicing Officer thereof, or upon request of the Special Servicer
and receipt from the Special Servicer of a Request for Release in the form of
Exhibit D-2 attached hereto, shall release, or cause any related Custodian to
release, such Mortgage File (or such portion thereof) (and, in the case of a
Serviced Non-Trust Mortgage Loan, the Trustee shall cause the related Serviced
Non-Trust Mortgage Loan Noteholder to release the original of the Mortgage Note
for such Non-Trust Mortgage Loan) to the Master Servicer or the Special
Servicer, as the case may be. Upon return of such Mortgage File (or such portion
thereof) to the Trustee or related Custodian (and, if applicable, such original
Mortgage Note for such Serviced Non-Trust Mortgage Loan to the related Serviced
Non-Trust Mortgage Loan Noteholder), or the delivery to the Trustee (and, if
applicable, to the related Serviced Non-Trust Mortgage Loan Noteholder) of a
certificate of a Servicing Officer of the Special Servicer stating that such
Serviced Mortgage Loan was liquidated and that all amounts received or to be
received in connection with such liquidation that are required to be deposited
into the related Custodial Account pursuant to Section 3.04(a) or Section
3.04A(a), as applicable, have been or will be so deposited, or that the related
Mortgaged Property has become an REO Property, the Request for Release shall be
released by the Trustee or related Custodian to the Master Servicer or the
Special Servicer, as applicable.
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(c) Within seven (7) Business Days (or within such shorter period (but
no less than three (3) Business Days) as execution and delivery can reasonably
be accomplished if the Special Servicer notifies the Trustee (and, in the case
of a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan
Noteholder(s)) of an exigency) of the Special Servicer's request therefor, the
Trustee shall execute and deliver to the Special Servicer (or the Special
Servicer may execute and deliver in the name of the Trustee (on behalf of the
Certificateholders and, in the case of a Mortgaged Property that secures a
Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan
Noteholder(s)) based on a limited power of attorney issued in favor of the
Special Servicer pursuant to Section 3.01(b)), in the form supplied to the
Trustee, with respect to any Serviced Mortgage Loan, any court pleadings,
requests for trustee's sale or other documents stated by the Special Servicer to
be reasonably necessary to the foreclosure or trustee's sale in respect of the
related Mortgaged Property or to any legal action brought to obtain judgment
against any Mortgagor on the related Mortgage Note or Mortgage or to obtain a
deficiency judgment, or to enforce any other remedies or rights provided by the
related Mortgage Note or Mortgage or otherwise available at law or in equity or
to defend any legal action or counterclaim filed against the Trust Fund, the
Master Servicer, the Special Servicer or, if applicable, any Serviced Non-Trust
Mortgage Loan Noteholder. Together with such documents or pleadings, the Special
Servicer shall deliver to the Trustee (and, if applicable, any affected Serviced
Non-Trust Mortgage Loan Noteholder) a certificate of a Servicing Officer
requesting that such pleadings or documents be executed by the Trustee and
certifying as to the reason such documents or pleadings are required and that
the execution and delivery thereof by the Trustee (on behalf of the
Certificateholders and, in the case of a Serviced Loan Combination, also on
behalf of the related Serviced Non-Trust Mortgage Loan Noteholder(s)) will not
invalidate or otherwise affect the lien of the Mortgage, except for the
termination of such a lien upon completion of the foreclosure or trustee's sale.
Notwithstanding anything contained herein to the contrary, neither the Master
Servicer nor the Special Servicer shall, without the Trustee's written consent:
(i) initiate any action, suit or proceeding solely under the Trustee's name
without indicating the Master Servicer's or Special Servicer's, as applicable,
representative capacity, or (ii) take any action with the intent to cause, and
that actually causes, the Trustee to be registered to do business in any state.
(d) If from time to time, pursuant to the terms of the related
Co-Lender Agreement and the related Outside Servicing Agreement, and as
appropriate for enforcing the terms of any Outside Serviced Trust Mortgage Loan,
any related Outside Servicer or the appropriate Non-Trust Mortgage Loan
Noteholder requests delivery to it of the original Mortgage Note for such
Outside Serviced Trust Mortgage Loan, then the Trustee shall release or cause
the release of such original Mortgage Note to the requesting party or its
designee. In connection with the release of the original Mortgage Note for any
Outside Serviced Trust Mortgage Loan in accordance with the preceding sentence,
the Trustee shall obtain such documentation (such as a custodial receipt) as is
appropriate to evidence the holding by the related Outside Servicer or the
appropriate Non-Trust Mortgage Loan Noteholder as custodian on behalf of and for
the benefit of the Trustee.
SECTION 3.11. Servicing Compensation; Payment of Expenses; Certain
Matters Regarding Servicing Advances.
(a) As compensation for its activities hereunder, the Master Servicer
shall be entitled to receive the Master Servicing Fee with respect to each Trust
Mortgage Loan, each REO Trust Mortgage Loan, each Serviced Non-Trust Mortgage
Loan and any successor REO Mortgage Loan with respect to a Serviced Non-Trust
Mortgage Loan. As to each such Mortgage Loan and REO Mortgage
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Loan, the Master Servicing Fee shall: (i) accrue from time to time at the
related Master Servicing Fee Rate on the same principal amount as interest
accrues from time to time on such Mortgage Loan or is deemed to accrue from time
to time on such REO Mortgage Loan; and (ii) be calculated on a 30/360 Basis (or,
in the event that a Principal Prepayment in full or other Liquidation Event
shall occur with respect to any such Mortgage Loan or REO Mortgage Loan on a
date that is not a Due Date, on the basis of the actual number of days to elapse
from and including the most recently preceding related Due Date to but excluding
the date of such Principal Prepayment or Liquidation Event in a month consisting
of 30 days). The Master Servicing Fee with respect to any such Mortgage Loan or
REO Mortgage Loan shall cease to accrue if a Liquidation Event occurs in respect
thereof. Earned but unpaid Master Servicing Fees shall be payable monthly, on a
loan-by-loan basis, from payments of interest on each such Mortgage Loan and REO
Revenues allocable as interest on each such REO Mortgage Loan. The Master
Servicer shall be entitled to recover unpaid Master Servicing Fees in respect of
any such Mortgage Loan or REO Mortgage Loan out of that portion of related
Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds allocable as
recoveries of interest, to the extent permitted by Section 3.05(a) or Section
3.05A, as applicable, and in the case of a Trust Mortgage Loan or an REO Trust
Mortgage Loan, out of such other amounts as may be permitted by Section 3.05(a).
The right to receive the Master Servicing Fee may not be transferred in whole or
in part except in connection with the transfer of all of the Master Servicer's
responsibilities and obligations under this Agreement.
(b) Additional master servicing compensation, in the form of the items
set forth in clauses (i) through (iii) below in this paragraph, shall be
retained by the Master Servicer or promptly paid to the Master Servicer by the
Special Servicer and such additional master servicing compensation is not
required to be deposited in any Custodial Account: (i) Net Default Charges,
charges for beneficiary statements or demands, amounts collected for checks
returned for insufficient funds, and any similar fees (excluding Prepayment
Premiums and Yield Maintenance Charges), in each case to the extent actually
paid by a Mortgagor with respect to any Serviced Mortgage Loan (or, in the case
of Net Default Charges, any Serviced Trust Mortgage Loan) and accrued during the
time that such Serviced Mortgage Loan (or, in the case of Net Default Charges,
such Serviced Trust Mortgage Loan) was a Performing Serviced Mortgage Loan (or,
in the case of Net Default Charges, a Performing Serviced Trust Mortgage Loan),
and any Net Default Charges Received by the Trust with respect to an Outside
Serviced Trust Mortgage Loan; (ii) 100% of each modification fee, extension fee
or other similar fee actually paid by a Mortgagor with respect to a
modification, consent, extension, waiver, amendment or encumbrance of the
related Mortgaged Property agreed to by the Master Servicer pursuant to Section
3.20(c) or Section 3.08(c), and 100% of any fee actually paid by a Mortgagor in
connection with a defeasance of a Serviced Mortgage Loan as contemplated under
Section 3.20; and (iii) with respect to any Performing Serviced Mortgage Loan,
50% of any and all assumption fees, 100% of any and all assumption application
fees (or, in the event that (x) the Master Servicer enters into an assumption or
substitution agreement pursuant to Section 3.08(a) and the related loan
documents do not provide for an assumption fee in connection therewith, or (y)
the proposed transfer or assumption under Section 3.08(a) is approved and/or
processed but does not occur or (z) the proposed transfer or assumption under
Section 3.08(a) is not approved or is denied and does not occur and,
additionally, in the case of (x), (y) and (z), assumption application fees are
paid by the Mortgagor in connection therewith, then 50% of such assumption
application fees) and other applicable fees actually paid by a Mortgagor in
accordance with the related loan documents with respect to any assumption or
substitution agreement entered into by the Master Servicer on behalf of the
Trust (or, in the case of a Serviced Loan Combination, on behalf of the Trust
and the related Non-Trust Mortgage Loan Noteholder(s)) pursuant to Section
3.08(a) or paid by a Mortgagor with respect to any transfer of an interest in a
Mortgagor pursuant to Section 3.08(a). The
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Master Servicer shall also be entitled to additional master servicing
compensation in the form of (i) Prepayment Interest Excesses Received by the
Trust with respect to the Trust Mortgage Loans; (ii) interest or other income
earned on deposits in the Custodial Accounts in accordance with Section 3.06(b)
(but only to the extent of the Net Investment Earnings, if any, with respect to
such account for each related Investment Period); and (iii) to the extent not
required to be paid to any Mortgagor under applicable law, any interest or other
income earned on deposits in the Servicing Accounts, the Reserve Accounts and
the Defeasance Deposit Account maintained thereby (but only to the extent of the
Net Investment Earnings, if any, with respect to each such account for each
related Investment Period).
The parties hereto acknowledge that, with regard to each Outside
Serviced Trust Mortgage Loan, as and to the extent provided in the related
Outside Servicing Agreement and/or the related Co-Lender Agreement, as
applicable, amounts in the nature of the foregoing may be payable to one of the
related Outside Servicers, and there can be no assurance that any related
Prepayment Interest Excesses and/or Default Charges shall be Received by the
Trust with respect to an Outside Serviced Trust Mortgage Loan.
(c) As compensation for its activities hereunder, the Special Servicer
shall be entitled to receive the Special Servicing Fee with respect to each
Specially Serviced Mortgage Loan and each REO Mortgage Loan that relates to an
Administered REO Property. With respect to each Specially Serviced Mortgage Loan
and each REO Mortgage Loan that relates to an Administered REO Property, the
Special Servicing Fee shall: (i) accrue from time to time at the Special
Servicing Fee Rate on the same principal amount as interest accrues from time to
time on such Mortgage Loan or is deemed to accrue from time to time on such REO
Mortgage Loan; and (ii) be calculated on a 30/360 Basis (or, in the event that a
Principal Prepayment in full or other Liquidation Event shall occur with respect
to any Specially Serviced Mortgage Loan or REO Mortgage Loan on a date that is
not a Due Date, on the basis of the actual number of days to elapse from and
including the most recently preceding related Due Date to but excluding the date
of such Principal Prepayment or Liquidation Event, in a month consisting of 30
days and, in the case of any other partial period that does not run from one Due
Date through and including the day immediately preceding the next Due Date, on
the basis of the actual number of days in such period in a month consisting of
30 days); provided that the Special Servicing Fee with respect to each Specially
Serviced Mortgage Loan and each REO Mortgage Loan that relates to an
Administered REO Property (or, in the case of each Serviced Loan Combination in
the event they constitute Specially Serviced Mortgage Loans or REO Mortgage
Loans, with respect to the entire Serviced Loan Combination), shall not be less
than $4,000 for any one-month period during which such Special Servicing Fee
accrues (or, in those cases where such Special Servicing Fee is accruing for a
partial period of less than one month, shall not be less than the prorated
portion of such $4,000 amount). The Special Servicing Fee with respect to any
Specially Serviced Mortgage Loan or REO Mortgage Loan shall cease to accrue as
of the date a Liquidation Event occurs in respect thereof or it becomes a
Corrected Mortgage Loan. Earned but unpaid Special Servicing Fees in respect of
Specially Serviced Trust Mortgage Loans and, to the extent they relate to
Administered REO Properties, REO Trust Mortgage Loans shall be payable monthly
out of general collections on the Mortgage Pool on deposit in the Pool Custodial
Account, to the extent permitted by Section 3.05(a). In addition, earned but
unpaid Special Servicing Fees in respect of a Serviced Loan Combination
consisting of Specially Serviced Mortgage Loans or REO Mortgage Loans shall be
payable out of collections on such Loan Combination on deposit in the applicable
Loan Combination Custodial Account, to the extent permitted pursuant to Section
3.05A and the related Co-Lender Agreement.
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As further compensation for its services hereunder, the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Mortgage Loan. As to each Corrected Mortgage Loan, subject to the
second following paragraph, the Workout Fee shall be payable from, and shall be
calculated by application of the Workout Fee Rate, to all collections of
principal, interest (other than any Default Interest, Additional Interest and
Excess Defeasance Deposit Proceeds), Prepayment Premiums and/or Yield
Maintenance Charges received on the subject Serviced Mortgage Loan for so long
as it remains a Corrected Mortgage Loan; provided that no Workout Fee shall be
payable from, or based upon the receipt of, Liquidation Proceeds collected in
connection with a Permitted Purchase, or out of any Loss of Value Payments,
Insurance Proceeds or Condemnation Proceeds. The Workout Fee with respect to any
Corrected Mortgage Loan will cease to be payable if such Corrected Mortgage Loan
again becomes a Specially Serviced Mortgage Loan or if the related Mortgaged
Property becomes an REO Property; provided that a new Workout Fee will become
payable if and when the particular Serviced Mortgage Loan again becomes a
Corrected Mortgage Loan. If the Special Servicer is terminated or removed (other
than for cause) or resigns in accordance with the first sentence of the first
paragraph of Section 6.04, it shall retain the right to receive any and all
Workout Fees (and the successor Special Servicer (including the Trustee if it is
the successor Special Servicer as provided in the first paragraph of Section
7.02) shall not be entitled to any portion of such Workout Fees) that are
payable in respect of:
(i) each Mortgage Loan that became a Corrected Mortgage Loan
during the period that the terminated, removed or resigning Special
Servicer acted as Special Servicer and was still such at the time of such
termination, removal or resignation; and
(ii) each Mortgage Loan that would have been a "Corrected
Mortgage Loan" at the time of such termination, removal or resignation but
for the payment (in accordance with clause (w) of the definition of
"Specially Serviced Mortgage Loan") by the related Mortgagor of the three
consecutive full and timely Monthly Payments under the terms of such
Serviced Mortgage Loan (as such terms may have been changed or modified in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or by reason of a modification, extension, waiver or amendment
granted or agreed to by the Master Servicer or the Special Servicer
pursuant to Section 3.20), but only if such three consecutive full and
timely Monthly Payments are in fact made within three months of such
termination, removal or resignation;
in each case until the Workout Fee for any such Serviced Mortgage Loan ceases to
be payable in accordance with the preceding sentence.
As further compensation for its activities hereunder, the Special
Servicer shall also be entitled to receive the Liquidation Fee with respect to
each Specially Serviced Mortgage Loan as to which it receives a full, partial or
discounted payoff and, subject to the provisos to the next sentence, each
Specially Serviced Mortgage Loan and Administered REO Property as to which it
receives Net Liquidation Proceeds. As to each such Specially Serviced Mortgage
Loan or Administered REO Property, subject to the following paragraph, the
Liquidation Fee shall be payable from, and shall be calculated by application of
the Liquidation Fee Rate to, such full, partial or discounted payoff and/or such
Net Liquidation Proceeds (exclusive of any portion of such payoff or proceeds
that represents Default Interest and/or Additional Interest); provided that no
Liquidation Fee shall be payable (i) with respect to any Specially Serviced
Mortgage Loan that becomes a Corrected Mortgage Loan or (ii) from
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or, based upon the receipt of, Liquidation Proceeds collected in connection with
the purchase of any Specially Serviced Trust Mortgage Loan by a Purchase Option
Holder pursuant to Section 3.18, by the Special Servicer, a Controlling Class
Certificateholder, the Master Servicer, the Depositor or Xxxxxx Brothers
pursuant to Section 9.01, by a Non-Trust Mortgage Loan Noteholder or its
designee pursuant to the related Co-Lender Agreement (unless such purchase
occurs after the expiration of 60 days from the date such Non-Trust Mortgage
Loan Noteholder's right to purchase such Specially Serviced Trust Mortgage Loan
arose under such Co-Lender Agreement and such Liquidation Fee is actually paid),
by the Depositor pursuant to Section 2.03 or by or on behalf of the UBS Mortgage
Loan Seller pursuant to the UBS/Depositor Mortgage Loan Purchase Agreement in
connection with a Material Document Defect or a Material Breach (in either such
case, prior to the expiration of the Seller/Depositor Resolution Period), by the
Depositor pursuant to Section 2.03 or by or on behalf of the UBS Mortgage Loan
Seller pursuant to the UBS/Depositor Mortgage Loan Purchase Agreement in
connection with the defeasance of an Early Defeasance Trust Mortgage Loan prior
to the second anniversary of the Closing Date, or by the holder of a related
mezzanine loan pursuant to a purchase right in connection with a Mortgage Loan
default as set forth in the related intercreditor agreement (unless, to the
extent permitted under the related intercreditor agreement, such purchase occurs
after the expiration of 60 days from the date such mezzanine lender's right to
purchase such defaulted Mortgage Loan arose under such intercreditor agreement
and such Liquidation Fee is actually paid; provided that, if the Master Servicer
or Special Servicer, as applicable, consents subsequent to the Closing Date to
the incurrence by the principal(s) of a Mortgagor under a Trust Mortgage Loan of
mezzanine financing in accordance with the related loan documents and enters
into an intercreditor agreement, such servicer (to the extent it is permitted to
do so under the related loan documents and applicable law and in accordance with
the Servicing Standard) shall require the related mezzanine lender to pay a
Liquidation Fee in connection with any purchase right that arises upon a
Mortgage Loan default in the event such purchase occurs after the expiration of
60 days from the date the right to purchase arises under such mezzanine
intercreditor agreement) or (iii) from or, based upon the receipt or application
of, Loss of Value Payments; and provided, further, that, in connection with any
purchase by the Depositor pursuant to Section 2.03 or the UBS Mortgage Loan
Seller pursuant to the UBS/Depositor Mortgage Loan Purchase Agreement in
connection with a Material Document Defect or a Material Breach (in either case,
subsequent to the expiration of the Seller/Depositor Resolution Period), the
Liquidation Fee shall equal 1% of the Stated Principal Balance of the
repurchased Trust Mortgage Loan (or, if an REO Property is being repurchased, 1%
of the Stated Principal Balance of the related REO Trust Mortgage Loan). Earned
but unpaid Liquidation Fees in respect of Specially Serviced Trust Mortgage
Loans and REO Trust Mortgage Loans shall be payable monthly out of general
collections on the Mortgage Pool on deposit in the Pool Custodial Account, to
the extent permitted by Section 3.05(a) and further to the extent not otherwise
payable as contemplated by the next sentence.
Notwithstanding the foregoing, any Workout Fee and/or Liquidation Fee
payable in accordance with the two preceding paragraphs with respect to Mortgage
Loans or REO Mortgage Loans that comprise a Serviced Loan Combination shall be
paid from collections received on such Loan Combination on deposit in the
applicable Loan Combination Custodial Account, to the extent permitted pursuant
to Section 3.05A and the related Co-Lender Agreement.
Notwithstanding anything to the contrary herein, a Liquidation Fee and
a Workout Fee relating to the same Mortgage Loan shall not be paid from the same
proceeds with respect to such Mortgage Loan.
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Notwithstanding anything to the contrary herein, the Special Servicer
shall not be entitled to any Special Servicing Fees, Workout Fees or Liquidation
Fees with respect to any Mortgage Loan or REO Mortgage Loan or comparable deemed
mortgage loan comprising an Outside Serviced Loan Combination.
The Special Servicer's right to receive the Special Servicing Fee, the
Workout Fee and the Liquidation Fee may not be transferred in whole or in part
except in connection with the transfer of all of the Special Servicer's
responsibilities and obligations under this Agreement.
(d) Additional special servicing compensation in the form of the items
set forth below in clauses (i) through (v) below shall be retained by the
Special Servicer or promptly paid to the Special Servicer by the Master
Servicer, as the case may be, and shall not be required to be deposited in any
Custodial Account pursuant to Section 3.04(a) or Section 3.04A(a): (i) Net
Default Charges actually collected with respect to any Serviced Trust Mortgage
Loan or any successor REO Trust Mortgage Loan with respect thereto that accrued
while the subject loan was a Specially Serviced Trust Mortgage Loan or an REO
Trust Mortgage Loan; (ii) with respect to any Specially Serviced Mortgage Loan,
100% of any and all assumption fees, assumption application fees and other
applicable fees, actually paid by a Mortgagor in accordance with the related
loan documents, with respect to any assumption or substitution agreement entered
into by the Special Servicer on behalf of the Trust (or, in the case of a
Serviced Loan Combination, on behalf of the Trust and the related Serviced
Non-Trust Mortgage Loan Noteholder(s)) pursuant to Section 3.08(b) or paid by a
Mortgagor with respect to any transfer of an interest in a Mortgagor pursuant to
Section 3.08(b); (iii) with respect to any Performing Serviced Mortgage Loan,
50% of any and all assumption fees actually paid by a Mortgagor in accordance
with the related loan documents, with respect to any assumption or substitution
agreement entered into by the Master Servicer on behalf of the Trust (or, in the
case of a Serviced Loan Combination, on behalf of the Trust and the related
Serviced Non-Trust Mortgage Loan Noteholder(s)) pursuant to Section 3.08(a) or
paid by a Mortgagor with respect to any transfer of an interest in a Mortgagor
pursuant to Section 3.08(a); (iv) with respect to any Performing Serviced
Mortgage Loan, in the event that (x) the Master Servicer enters into an
assumption or substitution agreement pursuant to Section 3.08(a) and the related
loan documents do not provide for an assumption fee in connection therewith or
(y) the proposed transfer or assumption under Section 3.08(a) is approved and/or
processed but does not occur or (z) the proposed transfer or assumption under
Section 3.08(a) is not approved or is denied and does not occur and,
additionally, in the case of (x), (y) and (z), assumption application fees are
paid by the Mortgagor in connection therewith, then 50% of such assumption
application fees; and (v) any and all modification fees, consent fees, extension
fees and similar fees actually collected on the Serviced Mortgage Loans that are
not otherwise payable to the Master Servicer as additional master servicing
compensation pursuant to Section 3.11(b). The Special Servicer shall also be
entitled to additional special servicing compensation in the form of interest or
other income earned on deposits in any REO Account, if established, in
accordance with Section 3.06(b) (but only to the extent of the Net Investment
Earnings, if any, with respect to such account for each related Investment
Period).
(e) The Master Servicer and the Special Servicer shall each be
required to pay out of its own funds all expenses incurred by it in connection
with its servicing activities hereunder (including payment of any amounts due
and owing to any of its Sub-Servicers and the premiums for any blanket policy or
the standby fee or similar premium for any master force placed policy obtained
by it insuring against hazard losses pursuant to Section 3.07(b)), if and to the
extent such expenses are not payable directly out of any of the Custodial
Accounts or, in the case of the Special Servicer, any of the REO
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Accounts, and neither the Master Servicer nor the Special Servicer shall be
entitled to reimbursement for such expenses except as expressly provided in this
Agreement.
(f) If the Master Servicer or Special Servicer is required under any
provision of this Agreement to make a Servicing Advance, but it does not do so
within 15 days after such Advance is required to be made, the Trustee shall, if
it has actual knowledge of such failure on the part of the Master Servicer or
Special Servicer, as the case may be, give written notice of such failure to, as
applicable, the Master Servicer or the Special Servicer. If such Servicing
Advance is not made by the Master Servicer or the Special Servicer, as
applicable, within three (3) Business Days after such notice is given to the
Master Servicer or the Special Servicer, as the case may be, then (subject to
Section 3.11(h)) the Trustee shall make such Servicing Advance. If the Trustee
fails to make any Servicing Advance required to be made under this Agreement,
then (subject to Section 3.11(h)) the Fiscal Agent shall make such Servicing
Advance within one (1) Business Day of such failure by the Trustee and, if so
made, the Trustee shall be deemed not to be in default under this Agreement.
(g) The Master Servicer, the Special Servicer, the Trustee and the
Fiscal Agent shall each be entitled to receive interest at the Reimbursement
Rate in effect from time to time, compounded annually, accrued on the amount of
each Servicing Advance made thereby (with its own funds) for so long as such
Servicing Advance is outstanding, such interest to be payable: (i) first, in
accordance with Sections 3.05(a) and 3.26, out of any Default Charges on deposit
in the Pool Custodial Account that were collected on or in respect of the
particular Trust Mortgage Loan or REO Trust Mortgage Loan as to which such
Servicing Advance relates (provided that such Default Charges will only be
applied to pay interest accrued on such Servicing Advance through the date that
such Default Charges were received); and (ii) then, if and to the extent that
such Default Charges are insufficient to cover such interest, but not before the
related Advance has been reimbursed pursuant to this Agreement, out of general
collections on the Trust Mortgage Loans and REO Trust Mortgage Loans on deposit
in the Pool Custodial Account; provided that, if such Servicing Advance was made
with respect to a Serviced Loan Combination or any related Mortgaged Property,
then such interest shall first be payable out of amounts on deposit in the
related Loan Combination Custodial Account in accordance with Section 3.05A and
the related Co-Lender Agreement. The Master Servicer shall reimburse itself, the
Special Servicer, the Trustee or the Fiscal Agent, as appropriate, in accordance
with Section 3.03, Section 3.05(a) or Section 3.05A, as applicable, for any
Servicing Advance as soon as practicable after funds available for such purpose
are deposited in the applicable Custodial Account. Notwithstanding the
foregoing, upon a determination that a previously made Servicing Advance is a
Nonrecoverable Servicing Advance, instead of obtaining reimbursement out of
general collections on the Mortgage Pool immediately, any of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent, as applicable,
may, in its sole discretion, elect to obtain reimbursement for such
Nonrecoverable Servicing Advance over a period of time (not to exceed 12 months
or such longer period of time as is approved in writing by the Controlling Class
Representative) and the unreimbursed portion of such Servicing Advance will
accrue interest at the Reimbursement Rate in effect from time to time. At any
time after such a determination to obtain reimbursement over time in accordance
with the preceding sentence, the Master Servicer, the Special Servicer, the
Trustee or the Fiscal Agent, as applicable, may, in its sole discretion, decide
to obtain reimbursement immediately. The fact that a decision to recover such
Nonrecoverable Servicing Advance over time, or not to do so, benefits some
Classes of Certificateholders to the detriment of other Classes shall not
constitute a violation of the Servicing Standard by the Master Servicer, or a
breach of any fiduciary duty owed to the Certificateholders by the Trustee or
the Fiscal Agent, or a breach of any other contractual obligation owed to the
Certificateholders by any party to this Agreement.
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(h) Notwithstanding anything herein to the contrary, none of the
Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent shall be
required to make out of its own funds any Servicing Advance that would, if made,
constitute a Nonrecoverable Servicing Advance. The determination by the Master
Servicer or the Special Servicer that it has made (or, in the case of the
Special Servicer, that the Master Servicer has, with respect to a Specially
Serviced Mortgage Loan or an REO Property, made) a Nonrecoverable Servicing
Advance or that any proposed Servicing Advance, if made, would constitute a
Nonrecoverable Servicing Advance, shall be made in accordance with the Servicing
Standard and shall be evidenced by an Officer's Certificate delivered promptly
to the Trustee and the Depositor (and, in the case of a Servicing Advance with
respect to a Serviced Loan Combination, the related Non-Trust Mortgage Loan
Noteholder(s)), setting forth the basis for such determination, together with a
copy of any appraisal of the related Mortgaged Property or REO Property, as the
case may be (which appraisal shall be an expense of the Trust, shall take into
account the factors specified in Section 3.18 and shall have been conducted by
an Independent Appraiser in accordance with the standards of the Appraisal
Institute within the twelve months preceding such determination of
nonrecoverability), and further accompanied by related Mortgagor operating
statements and financial statements, budgets and rent rolls of the related
Mortgaged Property (to the extent available and/or in the Master Servicer's or
the Special Servicer's possession) and any engineers' reports, environmental
surveys or similar reports that the Master Servicer or the Special Servicer may
have obtained and that support such determination. If the Master Servicer
intends to obtain an appraisal in connection with the foregoing, the Master
Servicer shall so notify the Special Servicer and consult with the Special
Servicer regarding such appraisal. In determining whether any Servicing Advance
constitutes a Nonrecoverable Servicing Advance, the Master Servicer and the
Special Servicer shall each be entitled to consider (among other things) only
the obligations of the related Mortgagor under the terms of the related Mortgage
Loan (as such terms may have been modified), to consider (among other things)
the related Mortgaged Property in its "as is" or then current condition and
occupancies, as modified by such party's reasonable assumptions regarding the
possibility and effects of future adverse change with respect to the related
Mortgaged Property, to estimate and consider (among other things) future
expenses and to estimate and consider (among other things) the timing of
recoveries. In addition, the Master Servicer or the Special Servicer may update
or change its recoverability determination at any time with respect to any
Servicing Advance, and the Master Servicer may obtain from the Special Servicer
any analysis, appraisals or market value estimates or other information in the
possession of the Special Servicer for purposes of determining whether a
Servicing Advance is a Nonrecoverable Servicing Advance. The Trustee and the
Fiscal Agent shall be entitled to rely, conclusively, on any determination by
the Master Servicer or the Special Servicer that a Servicing Advance, if made,
would be a Nonrecoverable Servicing Advance; provided, however, that if the
Master Servicer or the Special Servicer has failed to make a Servicing Advance
for reasons other than a determination by the Master Servicer or the Special
Servicer, as applicable, that such Servicing Advance would be a Nonrecoverable
Advance, the Trustee or the Fiscal Agent, as applicable, shall make such
Servicing Advance within the time periods required by Section 3.11(f) unless the
Trustee or the Fiscal Agent, in good faith, makes a determination that such
Servicing Advance would be a Nonrecoverable Advance.
(i) Notwithstanding anything set forth herein to the contrary, the
Master Servicer shall (at the direction of the Special Servicer if a Specially
Serviced Mortgage Loan or an Administered REO Property is involved) pay directly
out of the Pool Custodial Account and/or (if a Serviced Loan Combination is
involved) the related Loan Combination Custodial Account, in accordance with
Section 3.05(a) or Section 3.05A, as applicable, any servicing expense that, if
advanced by the Master Servicer or the Special Servicer, would constitute a
Nonrecoverable Servicing Advance; provided that the Master
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Servicer (or the Special Servicer, if a Specially Serviced Mortgage Loan or an
Administered REO Property is involved) has determined in accordance with the
Servicing Standard that making such payment, in the case of withdrawals from a
Loan Combination Custodial Account, is in the best interests of the
Certificateholders and the related Serviced Non-Trust Mortgage Loan
Noteholder(s) (as a collective whole), or, in the case of withdrawals from the
Pool Custodial Account, is in the best interests of the Certificateholders (as a
collective whole), as evidenced in each case by an Officer's Certificate
delivered promptly to the Trustee, the Depositor, the Controlling Class
Representative and any affected Serviced Non-Trust Mortgage Loan Noteholder(s),
setting forth the basis for such determination and accompanied by any
information that such Person may have obtained that supports such determination.
A copy of any such Officer's Certificate (and accompanying information) of the
Master Servicer shall also be promptly delivered to the Special Servicer, and a
copy of any such Officer's Certificate (and accompanying information) of the
Special Servicer shall also be promptly delivered to the Master Servicer. The
Master Servicer may conclusively rely on any information in this regard provided
by the Special Servicer (if other than the Master Servicer or an Affiliate
thereof).
SECTION 3.12. Property Inspections; Collection of Financial
Statements; Delivery of Certain Reports.
(a) The Special Servicer shall perform or cause to be performed a
physical inspection of the Mortgaged Property securing a Serviced Mortgage Loan
as soon as practicable after such Serviced Mortgage Loan becomes a Specially
Serviced Mortgage Loan and annually thereafter for so long as such Mortgage Loan
remains a Specially Serviced Mortgage Loan, the cost of which shall be paid by
the Master Servicer, at the direction of the Special Servicer, and shall be
reimbursable as a Servicing Advance. In addition, the Special Servicer shall
perform or cause to be performed a physical inspection of each of the
Administered REO Properties at least once per calendar year, the cost of which
shall be paid by the Master Servicer, at the direction of the Special Servicer,
and shall be reimbursable as a Servicing Advance. Beginning in 2006, the Master
Servicer shall at its expense perform or cause to be performed a physical
inspection of each Mortgaged Property securing a Performing Serviced Mortgage
Loan: (i) at least once every two calendar years in the case of Mortgaged
Properties securing Performing Serviced Mortgage Loans that have outstanding
principal balances of (or Mortgaged Properties having allocated loan amounts of)
$2,000,000 or less; and (ii) at least once every calendar year in the case of
all other such Mortgaged Properties; provided that, the Master Servicer will not
be required to perform or cause to be performed an inspection on a Mortgaged
Property if such Mortgaged Property has been inspected by the Master Servicer or
the Special Servicer in the preceding six months. The Master Servicer and the
Special Servicer shall each promptly prepare or cause to be prepared and deliver
to the Trustee, the related Serviced Non-Trust Mortgage Loan Noteholder(s) (if
the subject Mortgaged Property secures a Serviced Loan Combination) and each
other a written report of each such inspection performed by it that sets forth
in detail the condition of the Mortgaged Property and that specifies the
existence of: (i) any sale, transfer or abandonment of the Mortgaged Property of
which the Master Servicer or the Special Servicer, as applicable, is aware, (ii)
any change in the condition or value of the Mortgaged Property that the Master
Servicer or the Special Servicer, as applicable, in its reasonable, good faith
judgment, considers material, or (iii) any waste committed on the Mortgaged
Property. The Master Servicer and Special Servicer shall each forward copies of
any such inspection reports prepared by it to the Underwriters and the
Controlling Class Representative upon request, subject to payment of a
reasonable fee.
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The Special Servicer, in the case of each Specially Serviced Mortgage
Loan and each REO Mortgage Loan that relates to an Administered REO Property,
and the Master Servicer, in the case of each Performing Serviced Mortgage Loan,
shall each, consistent with the Servicing Standard, use reasonable efforts to
obtain quarterly, annual and other periodic operating statements and rent rolls
with respect to each of the related Mortgaged Properties and REO Properties. The
Special Servicer shall, promptly following receipt, deliver copies of the
operating statements and rent rolls received or obtained by it to the Master
Servicer. The Master Servicer shall promptly deliver copies of the operating
statements and rent rolls received or obtained by it (including pursuant to the
preceding sentence) to the Trustee, the Special Servicer, any related Serviced
Non-Trust Mortgage Loan Noteholder(s) (if the subject Mortgaged Property secures
a Serviced Loan Combination) or any Controlling Class Certificateholder, in each
case upon request.
Within 30 days after receipt by the Master Servicer or Special
Servicer, as applicable, of any annual operating statements with respect to any
Mortgaged Property (other than a Mortgaged Property that secures an Outside
Serviced Loan Combination) or Administered REO Property, the Master Servicer
(with respect to a Mortgaged Property that secures a Performing Serviced
Mortgage Loan) and the Special Servicer (with respect to a Mortgaged Property
that secures a Specially Serviced Mortgage Loan or with respect to an
Administered REO Property) shall prepare or update and forward to the Trustee a
CMSA NOI Adjustment Worksheet for such Mortgaged Property or Administered REO
Property (with, upon request, the annual operating statements attached thereto
as an exhibit).
The Master Servicer, with respect to a Mortgaged Property that secures
a Performing Serviced Mortgage Loan, and the Special Servicer, with respect to a
Mortgaged Property that secures a Specially Serviced Mortgage Loan or with
respect to an Administered REO Property, shall prepare and maintain one CMSA
Operating Statement Analysis Report for each such Mortgaged Property and
Administered REO Property. The CMSA Operating Statement Analysis Report for each
such Mortgaged Property and REO Property is to be updated by the Master Servicer
or Special Servicer, as applicable, within 30 days after its receipt of updated
operating statements for a Mortgaged Property or REO Property, as the case may
be. The Master Servicer or Special Servicer, as applicable, shall use the
"Normalized" column from the CMSA NOI Adjustment Worksheet for any Mortgaged
Property or REO Property, as the case may be, to update and normalize the
corresponding annual year-end information in the CMSA Operating Statement
Analysis Report and shall use any annual operating statements and related data
fields received with respect to any Mortgaged Property or REO Property, as the
case may be, to prepare the CMSA NOI Adjustment Worksheet for such property.
Copies of CMSA Operating Statement Analysis Reports and CMSA NOI Adjustment
Worksheets (as well as any comparable items received with respect to an Outside
Serviced Trust Mortgage Loan or any related REO Property) are to be forwarded by
the Master Servicer or the Special Servicer, as applicable, to each other, the
Trustee and any Controlling Class Certificateholder, in each case upon request.
(b) Not later than 12:00 p.m. (New York City time) on the Business Day
after each Trust Determination Date, the Special Servicer shall deliver or cause
to be delivered to the Master Servicer the following reports with respect to the
Specially Serviced Trust Mortgage Loans and any Administered REO Properties and,
to the extent that the subject information relates to when they were Specially
Serviced Trust Mortgage Loans, with respect to any Corrected Trust Mortgage
Loans, providing the required information as of the related Determination Date:
(A) a CMSA Property File; (B) a CMSA Comparative Financial Status Report; (C) a
CMSA Delinquent Loan Status Report; (D) a
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Loan Payoff Notification Report; (E) a CMSA Historical Liquidation Report; (F) a
CMSA Historical Loan Modification and Corrected Mortgage Loan Report; and (G) a
CMSA REO Status Report.
(c) Not later than 1:00 p.m. (New York City time) on the second
Business Day prior to each Distribution Date, the Master Servicer shall furnish
to the Trustee and, upon request, to the Depositor, the Underwriters and the
Special Servicer, by electronic transmission (or in such other form to which the
Trustee or the Depositor, as the case may be, and the Master Servicer may
agree), an accurate and complete CMSA Loan Periodic Update File providing the
required information for the Trust Mortgage Loans and any REO Trust Mortgage
Loans as of the related Determination Date (or, in the case of an Outside
Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with
respect thereto, as of the end of the related Underlying Collection Period). Not
later than 2:00 p.m. (New York City time) on the first Business Day prior to
each Distribution Date, the Master Servicer shall deliver or cause to be
delivered to the Trustee, the Rating Agencies, the Special Servicer and, upon
request, any Controlling Class Certificateholder: (i) the most recent CMSA
Historical Loan Modification and Corrected Mortgage Loan Report, CMSA Historical
Liquidation Report and CMSA REO Status Report received from the Special Servicer
pursuant to Section 3.12(b); (ii) the most recent CMSA Property File, CMSA
Financial File, CMSA Loan Setup File (if modified), CMSA Loan Level Reserve/LOC
Report, CMSA Delinquent Loan Status Report, CMSA Comparative Financial Status
Report and Loan Payoff Notification Report (in each case combining the reports
prepared by the Special Servicer and the Master Servicer); (iii) a CMSA Servicer
Watch List with information that is current as of the related Determination Date
with respect to each subject Trust Mortgage Loan; and (iv) a CMSA Advance
Recovery Report providing the required information for the Trust Mortgage Loans
and any REO Trust Mortgage Loans as of the related Determination Date (or, in
the case of an Outside Serviced Trust Mortgage Loan or any successor REO Trust
Mortgage Loan with respect thereto, as of the end of the related Underlying
Collection Period). The Master Servicer shall incorporate in the foregoing
reports referred to above in this Section 3.12(c) any information and reports
received (by the date in the month of such Distribution Date that such
information and reports are scheduled to be received in accordance with the
related Outside Servicing Agreement) from the applicable Outside Servicer with
respect to each Outside Serviced Trust Mortgage Loan or any successor REO Trust
Mortgage Loan with respect thereto. The Master Servicer shall include on one of
such reports updated information as of the applicable Determination Date
regarding the amount of accrued and unpaid interest on Advances in accordance
with Section 3.11(g) and/or 4.03(d), such information to be presented on a
loan-by-loan basis.
(d) If the Master Servicer or the Special Servicer determines, in its
reasonable judgment, that information regarding the Trust Mortgage Loans and REO
Properties (in addition to the information otherwise required to be contained in
the CMSA Investor Reporting Package) should be disclosed to Certificateholders
and Certificate Owners, then the Master Servicer or, solely as to Specially
Serviced Mortgage Loans and Administered REO Properties, the Special Servicer,
shall so notify the Trustee, set forth such information in an additional report,
in a format reasonably acceptable to the Trustee and the Master Servicer and, if
applicable, the Special Servicer (the "Supplemental Report"), and deliver such
report to the Trustee upon preparation thereof or simultaneously with the
delivery of the Master Servicer's reports described in Section 3.12(c).
In addition, during any fiscal year of the Trust until the Trustee
provides written notice that it has filed a Form 15 with respect to the Trust as
to that fiscal year in accordance with Section 8.15(c), each of the Master
Servicer (solely with respect to Performing Serviced Mortgage Loans) and
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the Special Servicer (solely with respect to Specially Serviced Mortgage Loans
and Administered REO Properties and any material impairment to any such Mortgage
Loan or REO Property), shall monitor for the occurrence of any events specified
under Section 8.15(b) and (to the extent the Master Servicer or the Special
Servicer, as applicable, has actual knowledge of, or should (in performing its
obligations in accordance with the Servicing Standard) have actual knowledge of,
any such event) shall promptly, but not later than one Business Day after
obtaining knowledge of such event, so notify the Trustee and the Depositor, set
forth such information in a Supplemental Report, and deliver such report to the
Trustee upon preparation thereof.
(e) The Special Servicer shall deliver to the Master Servicer the
reports set forth in Section 3.12(b) in an electronic format reasonably
acceptable to the Special Servicer and the Master Servicer, and the Master
Servicer shall deliver to the Trustee, the Special Servicer and, upon request,
any Controlling Class Certificateholder the reports set forth in Section 3.12(c)
in an electronic format reasonably acceptable to the Master Servicer and the
Trustee. The Master Servicer may, absent manifest error, conclusively rely on
the reports to be provided by the Special Servicer pursuant to Section 3.12(b)
and, with respect to an Outside Serviced Trust Mortgage Loan or an Outside
Administered REO Property, by a related Outside Servicer pursuant to the related
Outside Servicing Agreement. The Trustee may, absent manifest error,
conclusively rely on the reports to be provided by the Master Servicer pursuant
to Section 3.12(c) to the extent that the underlying information is solely
within the control of the Master Servicer or the Special Servicer, and the
Trustee shall not be responsible to recompute, recalculate or verify the
information provided to it by the Master Servicer. In the case of information or
reports to be furnished by the Master Servicer to the Trustee pursuant to
Section 3.12(c), if and to the extent that such information is based on reports
to be provided by the Special Servicer pursuant to Section 3.12(b) or by an
Outside Servicer pursuant to an Outside Servicing Agreement, or if and to the
extent such reports are to be prepared and delivered by the Special Servicer
pursuant to Section 3.12(b) or by an Outside Servicer pursuant to an Outside
Servicing Agreement, then, so long as the Master Servicer and the party required
to provide the subject reports are not the same Person or Affiliates, the Master
Servicer shall have no obligation to provide such information or reports to the
Trustee until it has received such information or reports from the Special
Servicer or the relevant Outside Servicer, as applicable. The Master Servicer
shall not be in default hereunder due to a delay in providing the reports
required by Section 3.12(c) caused by the Special Servicer's failure to timely
provide any report required under Section 3.12(b) of this Agreement, or by an
Outside Servicer's failure to provide any report required to be provided to the
holder of the related Outside Serviced Trust Mortgage Loan pursuant to the
related Outside Servicing Agreement or the related Co-Lender Agreement, as
applicable.
(f) The preparation and maintenance by the Master Servicer and the
Special Servicer of all the reports specified in this Section 3.12, including
the calculations made therein, shall be done in accordance with CMSA standards
to the extent applicable thereto.
SECTION 3.12A. Preparation and Delivery of Certain Statements and
Reports to the Serviced Non-Trust Mortgage Loan
Noteholders.
(a) The Master Servicer shall promptly deliver to each Serviced
Non-Trust Mortgage Loan Noteholder: (i) copies of operating statements and rent
rolls; (ii) upon request, annual CMSA NOI Adjustment Worksheets (with annual
operating statements as exhibits); and (iii) annual CMSA
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Operating Statement Analysis Reports, in each case prepared, received or
obtained by it pursuant to Section 3.12 with respect to the Mortgaged Property
securing the related Serviced Loan Combination.
(b) If the Mortgage Loans forming a Serviced Loan Combination
constitute Specially Serviced Mortgage Loans, or if a Mortgaged Property
securing a Serviced Loan Combination has become an REO Property, then each
calendar month, not later than 12:00 p.m. (New York City time) on the Business
Day after the applicable Loan Combination Determination Date in such month, the
Special Servicer shall deliver or cause to be delivered to the Master Servicer
the following reports with respect to such Serviced Loan Combination and/or the
related Mortgaged Property, providing the required information as of such Loan
Combination Determination Date: (i) a CMSA Property File (or similar report
satisfactory to the Master Servicer); and (ii) a CMSA Comparative Financial
Status Report (or similar report satisfactory to the Master Servicer). If the
Mortgage Loans forming a Serviced Loan Combination constitute Specially Serviced
Mortgage Loans, or if a Mortgaged Property securing a Serviced Loan Combination
has become an REO Property, then each calendar month, not later than 10:00 a.m.
(New York City time) on the second Business Day prior to the applicable Loan
Combination Master Servicer Remittance Date in such month, the Special Servicer
shall deliver or cause to be delivered to the Master Servicer such of the
following reports as may be relevant with respect to such Serviced Loan
Combination and/or the related Mortgaged Property: (i) a CMSA Delinquent Loan
Status Report; (ii) a Loan Payoff Notification Report, (iii) a CMSA Historical
Liquidation Report; (iv) a CMSA Historical Loan Modification and Corrected
Mortgage Loan Report; and (v) a CMSA REO Status Report.
(c) Prior to 12:00 noon (New York City time) on each applicable Master
Servicer Remittance Date, the Master Servicer shall, with respect to each
Serviced Loan Combination, prepare all Loan Combination Servicing Reports as may
be relevant and that are not otherwise required to be prepared by the Special
Servicer pursuant to Section 3.12A(b). The Master Servicer shall also include on
one of such reports updated information as of the applicable Loan Combination
Determination Date regarding the amount of accrued and unpaid interest on
Advances in accordance with Section 3.11(g) and/or 4.03(d), such information to
be presented on a loan-by-loan basis.
(d) The Special Servicer shall deliver to the Master Servicer the
reports set forth in Section 3.12A(b) in an electronic format reasonably
acceptable to the Special Servicer and the Master Servicer. The Master Servicer
may, absent manifest error, conclusively rely on the reports to be provided by
the Special Servicer pursuant to Section 3.12A(b). In the case of information or
reports to be furnished by the Master Servicer to a Serviced Non-Trust Mortgage
Loan Noteholder pursuant to Section 3.12A(f), to the extent that such
information is based on reports to be provided by the Special Servicer pursuant
to Section 3.12A(b) and/or that such reports are to be prepared and delivered by
the Special Servicer pursuant to Section 3.12A(b), so long as the Master
Servicer and the Special Servicer are not the same Person or Affiliates, the
Master Servicer shall have no obligation to provide such information or reports
until it has received such information or reports from the Special Servicer, and
the Master Servicer shall not be in default hereunder due to a delay in
providing the reports required by Section 3.12A(f) caused by the Special
Servicer's failure to timely provide any report required under Section 3.12A(b)
of this Agreement.
(e) The preparation and maintenance by the Master Servicer and the
Special Servicer of all the reports specified in this Section 3.12A, including
the calculations made therein, shall be done in accordance with CMSA standards,
to the extent applicable thereto.
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(f) Not later than 12:00 noon (New York City time) on each related
Master Servicer Remittance Date, the Master Servicer shall forward to the
related Non-Trust Mortgage Loan Noteholder(s) all related Loan Combination
Servicing Reports prepared with respect to each Serviced Loan Combination,
pursuant to this Section 3.12A, during the calendar month in which such Master
Servicer Remittance Date occurs.
(g) The Master Servicer shall only be obligated to deliver the
statements, reports and information contemplated by Section 3.12A(f) to the
extent it receives the necessary underlying information from the Special
Servicer and shall not be liable for its failure to deliver such statements,
reports and information on the prescribed due dates, to the extent caused by the
failure of the Special Servicer to deliver timely such underlying information.
Nothing herein shall obligate the Master Servicer or the Special Servicer to
violate any applicable law prohibiting disclosure of information with respect to
the related Mortgagor, and the failure of the Master Servicer or the Special
Servicer to disseminate information for such reason shall not be a breach
hereunder.
Absent manifest error of which it has actual knowledge, neither the
Master Servicer nor the Special Servicer shall be responsible for the accuracy
or completeness of any information supplied to it by a Mortgagor, a Mortgage
Loan Seller or third party that is included in any reports, statements,
materials or information prepared or provided by the Master Servicer or the
Special Servicer, as applicable, pursuant to this Agreement. Neither the Master
Servicer nor the Special Servicer shall have any obligation to verify the
accuracy or completeness of any information provided by a Mortgagor, a Mortgage
Loan Seller, a third party or each other.
SECTION 3.13. Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer shall deliver to
the Trustee, the Rating Agencies, the Depositor, the Underwriters, each Serviced
Non-Trust Mortgage Loan Noteholder and each other, on or before April 30 of each
year, beginning in 2006 (or, as to any such year, such earlier date as is
contemplated by the last sentence of this Section 3.13), an Officer's
Certificate (the "Annual Performance Certification") stating, as to the signer
thereof, that (i) a review of the activities of the Master Servicer or the
Special Servicer, as the case may be, during the preceding calendar year (or, in
the case of the first such certification, during the period from the Closing
Date to December 31, 2005, inclusive) and, in particular, of its performance
under this Agreement, has been made under such officer's supervision, (ii) to
the best of such officer's knowledge, based on such review, the Master Servicer
or the Special Servicer, as the case may be, has fulfilled all of its material
obligations under this Agreement in all material respects throughout such
preceding calendar year or portion thereof (or, if there has been a default in
the fulfillment of any such obligation, specifying each such default known to
such officer and the nature and status thereof), and (iii) the Master Servicer
or the Special Servicer, as the case may be, has received no notice regarding
the qualification, or challenging the status, of any REMIC Pool as a REMIC or
the Grantor Trust (if created hereunder taking into account Section 2.05(b)) as
a grantor trust, from the IRS or any other governmental agency or body (or, if
it has received any such notice, specifying the details thereof).
Notwithstanding the timing provided for in the first sentence of this paragraph,
if (as confirmed in writing by the Depositor) the Depositor or any other party
hereto is required to file an Annual Report on Form 10-K with the Commission in
respect of the Trust covering any particular calendar year, or (if applicable)
any other depositor, trustee and/or other certifying party and certifying
officer with respect to a related securitization trust is required to file an
Annual Report on Form 10-K with the Commission in connection with the
securitization of any Serviced Non-Trust
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Mortgage Loan covering any particular calendar year, then the Annual Performance
Certification to be delivered by each of the Master Servicer and the Special
Servicer during the following year, shall be delivered on or before March 20 of
such following year to the Depositor, each Serviced Non-Trust Mortgage Loan
Noteholder and any such depositor, trustee and/or other certifying party and
certifying officer with respect to a related securitization trust, as
applicable; and the Master Servicer and the Special Servicer are hereby notified
that the Depositor is required to file an Annual Report on Form 10-K with the
Commission in respect of the Trust covering calendar year 2005.
SECTION 3.14. Reports by Independent Public Accountants.
On or before April 30 of each year, beginning in 2006 (or, as to any
such year, such earlier date as is contemplated by the last sentence of this
paragraph), each of the Master Servicer and the Special Servicer at its expense
shall cause a firm of independent public accountants (which may also render
other services to the Master Servicer or the Special Servicer) that is a member
of the American Institute of Certified Public Accountants to furnish a statement
(the "Annual Accountants' Report") to the Trustee, the Rating Agencies, the
Depositor, the Underwriters, each Serviced Non-Trust Mortgage Loan Noteholder
and each other, to the effect that (i) such firm has obtained a letter of
representation regarding certain matters from the management of the Master
Servicer or the Special Servicer, as applicable, which includes an assertion
that the Master Servicer or the Special Servicer, as applicable, has complied
with certain minimum mortgage loan servicing standards (to the extent applicable
to commercial and multifamily mortgage loans), identified in the Uniform Single
Attestation Program for Mortgage Bankers established by the Mortgage Bankers
Association of America, with respect to the servicing of commercial and
multifamily mortgage loans during the most recently completed calendar year, and
(ii) on the basis of an examination conducted by such firm in accordance with
standards established by the American Institute of Certified Public Accountants,
such representation is fairly stated in all material respects, subject to such
exceptions and other qualifications that may be appropriate. In rendering its
report such firm may rely, as to matters relating to the direct servicing of
commercial and multifamily mortgage loans by sub-servicers, upon comparable
reports of firms of independent certified public accountants rendered (within
one year of such report) on the basis of examinations conducted in accordance
with the same standards with respect to those sub-servicers. Notwithstanding the
timing provided for in the first sentence of this paragraph, if (as confirmed in
writing by the Depositor) the Depositor is required to file an Annual Report on
Form 10-K with the Commission in respect of the Trust covering any particular
calendar year, or (if applicable) any other depositor, trustee and/or other
certifying party and certifying officer with respect to a related securitization
trust is required to file an Annual Report on Form 10-K with the Commission in
connection with the securitization of any Serviced Non-Trust Mortgage Loan
covering any particular calendar year, then the Annual Accountants' Report to be
delivered on behalf of each of the Master Servicer and the Special Servicer
during the following year shall be delivered to the Depositor, the Trustee, each
Serviced Non-Trust Mortgage Loan Noteholder and any such depositor, trustee
and/or other certifying party and certifying officer with respect to a related
securitization trust, as applicable, on or before March 20 of such following
year and shall not contain any restrictions on the filing thereof with the
Commission with respect to calendar year 2005; and the Master Servicer and the
Special Servicer are hereby notified that the Depositor is required to file an
Annual Report on Form 10-K (including the foregoing Annual Accountants' Report)
with the Commission in respect of the Trust covering calendar year 2005. In the
event the Trustee does not receive the Annual Accountants' Report from the
Master Servicer or the Special Servicer, as applicable, by March 20th of any
year during which an Annual Report on Form 10-K is required to be filed with the
Commission with respect to the Trust, then the Trustee shall forward a Servicer
Notice to the Master
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Servicer or the Special Servicer, as the case may be, and the Depositor within
one (1) Business Day of such failure. For the purposes of the preceding sentence
of this Section 3.14 and Section 7.01(v)(B) of this Agreement, a "Servicer
Notice" shall constitute either any writing forwarded to such party or, solely
in the case of the Master Servicer, notwithstanding the provisions of Section
11.05, e-mail notice which shall be forwarded to all of the following e-mail
addresses: xxxxxxxx.xxxxxxxxxx@xxxxxxxx.xxx; xxxxx.xxxxxxxxx@xxxxxxxx.xxx; and
xxxx.xxxxxxxx@xxxxxxxx.xxx, or such other e-mail addresses as are provided in
writing by the Master Servicer to the Trustee and the Depositor; provided that
any party to this Agreement (or someone acting on their behalf) shall only be
required to forward any such notice to be delivered to the Master Servicer to no
more than three e-mail addresses in the aggregate in order to fulfill its
notification requirement as set forth in the preceding sentence and/or under the
provisions of Section 7.01(v)(B).
The Master Servicer and the Special Servicer, to the extent
applicable, will reasonably cooperate with the Depositor in conforming any
reports delivered pursuant to this Section 3.14 to requirements imposed by the
Commission on the Depositor in connection with the Depositor's reporting
requirements in respect of the Trust Fund pursuant to the Exchange Act, provided
that the Master Servicer and Special Servicer shall each be entitled to charge
the Depositor for any reasonable additional costs and expenses incurred in
affording the Depositor such cooperation.
SECTION 3.15. Access to Certain Information.
(a) Each of the Master Servicer and the Special Servicer shall afford
to the Trustee, the Underwriters, the Rating Agencies, the Depositor, any
Certificateholder, any Serviced Non-Trust Mortgage Loan Noteholder and any
Certificate Owner (identified as such to the reasonable satisfaction of the
Master Servicer or the Special Servicer, as the case may be), and to the OTS,
the FDIC and any other banking or insurance regulatory authority that may
exercise authority over any Certificateholder, any Certificate Owner (identified
as such to the reasonable satisfaction of the Master Servicer or the Special
Servicer, as the case may be) or any Serviced Non-Trust Mortgage Loan
Noteholder, access to any records regarding the Serviced Mortgage Loans and the
servicing thereof within its control (which access shall be limited, in the case
of any Serviced Non-Trust Mortgage Loan Noteholder or any regulatory authority
seeking such access in respect of a Serviced Non-Trust Mortgage Loan Noteholder,
to records relating to the related Serviced Non-Trust Mortgage Loan), except to
the extent it is prohibited from doing so by applicable law or contract or to
the extent such information is subject to a privilege under applicable law to be
asserted on behalf of the Certificateholders or the Serviced Non-Trust Mortgage
Loan Noteholders. Such access shall be afforded only upon reasonable prior
written request and during normal business hours at the offices of the Master
Servicer or the Special Servicer, as the case may be, designated by it.
In connection with providing or granting any information or access
pursuant to the prior paragraph to a Certificateholder, a Certificate Owner, a
Serviced Non-Trust Mortgage Loan Noteholder or any regulatory authority that may
exercise authority over a Certificateholder, a Certificate Owner or a Serviced
Non-Trust Mortgage Loan Noteholder, the Master Servicer and the Special Servicer
each may require payment from such Certificateholder, a Certificate Owner or a
Serviced Non-Trust Mortgage Loan Noteholder of a sum sufficient to cover the
reasonable costs and expenses of providing such information or access, including
copy charges and reasonable fees for employee time and for space; provided that
no charge may be made if such information or access was required to be given or
made available under applicable law. In connection with providing
Certificateholders and Certificate Owners
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access to the information described in the preceding paragraph, the Master
Servicer and the Special Servicer shall require (prior to affording such access)
a written confirmation executed by the requesting Person substantially in such
form as may be reasonably acceptable to the Master Servicer or the Special
Servicer, as the case may be, generally to the effect that such Person is a
Holder of Certificates or a beneficial holder of Book-Entry Certificates and
will keep such information confidential.
Upon the reasonable request of any Certificateholder, or any
Certificate Owner identified to the Master Servicer to the Master Servicer's
reasonable satisfaction, the Master Servicer may provide (or forward
electronically) (at the expense of such Certificateholder or Certificate Owner)
copies of any operating statements, rent rolls and financial statements obtained
by the Master Servicer or the Special Servicer; provided that, in connection
therewith, the Master Servicer shall require a written confirmation executed by
the requesting Person substantially in such form as may be reasonably acceptable
to the Master Servicer, generally to the effect that such Person is a Holder of
Certificates or a beneficial holder of Book-Entry Certificates and will keep
such information confidential.
(b) No less often than on a monthly basis, upon reasonable prior
notice and during normal business hours, each of the Master Servicer and the
Special Servicer shall, without charge, make a knowledgeable Servicing Officer
available to answer questions (if and to the extent the Master Servicer or the
Special Servicer, as the case may be, is responsible (or, in the case of the
Special Servicer, would be responsible upon the occurrence of a Servicing
Transfer Event) for the servicing thereof) from the following parties: (i) the
Controlling Class Representative regarding the performance and servicing of the
Mortgage Loans and/or the REO Properties; and (ii) the related Serviced Loan
Combination Controlling Party regarding the performance and servicing of each
Serviced Loan Combination and/or any related REO Property. Except as provided in
the following sentence, in connection with providing the Controlling Class
Representative with the information described in the preceding sentence, the
Master Servicer and the Special Servicer shall require (prior to providing such
information for the first time to such Controlling Class Representative) a
Controlling Class Representative Confirmation (as defined in Section 6.09(b)),
generally to the effect that such Person will keep any information received by
it from time to time pursuant to this Agreement confidential (other than with
respect to communications with the Controlling Class). In the case of the
initial Controlling Class Representative, upon its or an Affiliate's acquisition
of the Class T Certificates, such entity shall be deemed to have agreed to keep
all non-public information received by it in such capacity from time to time
pursuant to this Agreement confidential, subject to applicable law, and such
initial Controlling Class Representative shall be deemed to have made such
agreement without delivery of the Controlling Class Representative Confirmation.
SECTION 3.16. Title to REO Property; REO Accounts.
(a) If title to any Mortgaged Property (other than a Mortgaged
Property that secures an Outside Serviced Loan Combination) is acquired, the
deed or certificate of sale shall be issued to the Trustee or its nominee on
behalf of the Certificateholders and, in the case of a Mortgaged Property that
secures a Serviced Loan Combination, on behalf of the related Serviced Non-Trust
Mortgage Loan Noteholder(s). If, pursuant to Section 3.09(b), the Special
Servicer formed or caused to be formed, at the expense of the Trust, a single
member limited liability company (of which the Trust is the sole member) for the
purpose of taking title to one or more Administered REO Properties pursuant to
this Agreement, then (subject to the interests of any affected Serviced
Non-Trust Mortgage Loan Noteholder), the deed or certificate of sale with
respect to any such Administered REO Property shall be
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issued to such single member limited liability company. The limited liability
company shall be a manager-managed limited liability company, with the Special
Servicer to serve as the initial manager to manage the property of the limited
liability company, including any applicable Administered REO Property, in
accordance with the terms of this Agreement as if such property was held
directly in the name of the Trust or Trustee under this Agreement.
The Special Servicer, on behalf of the Trust Fund and, in the case of
any Administered REO Property that relates to a Serviced Loan Combination, the
related Serviced Non-Trust Mortgage Loan Noteholder(s), shall sell any
Administered REO Property by the end of the third calendar year following the
calendar year in which the applicable REMIC Pool acquires ownership of such REO
Property for purposes of Section 860G(a)(8) of the Code, unless the Special
Servicer either (i) applies, more than 60 days prior to the end of such third
succeeding year, for and is granted an extension of time (an "REO Extension") by
the IRS to sell such REO Property or (ii) obtains for the Trustee an Opinion of
Counsel, addressed to the Trustee, the Special Servicer and the Master Servicer,
to the effect that the holding by the applicable REMIC Pool of such Administered
REO Property subsequent to the end of such third succeeding year will not result
in the imposition of taxes on "prohibited transactions" (as defined in Section
860F of the Code) of any REMIC Pool or cause any REMIC Pool to fail to qualify
as a REMIC at any time that any Certificates are outstanding. If the Special
Servicer is granted the REO Extension contemplated by clause (i) of the
immediately preceding sentence or obtains the Opinion of Counsel contemplated by
clause (ii) of the immediately preceding sentence, the Special Servicer shall
sell the subject Administered REO Property within such extended period as is
permitted by such REO Extension or such Opinion of Counsel, as the case may be.
Any expense incurred by the Special Servicer in connection with its obtaining
the REO Extension contemplated by clause (i) of the second preceding sentence or
its obtaining the Opinion of Counsel contemplated by clause (ii) of the second
preceding sentence, or for the creation of and the operating of a single member
limited liability company, shall be covered by, and reimbursable as, a Servicing
Advance.
(b) The Special Servicer shall segregate and hold all funds collected
and received in connection with any Administered REO Property separate and apart
from its own funds and general assets. If an REO Acquisition shall occur in
respect of any Mortgaged Property (other than a Mortgaged Property that secures
a Loan Combination), the Special Servicer shall establish and maintain one or
more accounts (collectively, the "Pool REO Account"), to be held on behalf of
the Trustee in trust for the benefit of the Certificateholders, for the
retention of revenues and other proceeds derived from each REO Property (other
than any REO Property that relates to a Loan Combination). If such REO
Acquisition occurs with respect to the Mortgaged Property that secures any
Serviced Loan Combination, then the Special Servicer shall establish one or more
accounts solely with respect to such property (the related "Loan Combination REO
Account"), to be held for the benefit of the Certificateholders and the related
Serviced Non-Trust Mortgage Loan Noteholder(s). The Pool REO Account and each
Loan Combination REO Account shall each be an Eligible Account. The Special
Servicer shall deposit, or cause to be deposited, in the applicable REO Account,
upon receipt, all REO Revenues, Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received in respect of any Administered REO Property. Funds
in an REO Account (other than any such funds representing Additional Interest)
may be invested in Permitted Investments in accordance with Section 3.06. The
Special Servicer shall be entitled to make withdrawals from an REO Account to
pay itself, as additional special servicing compensation in accordance with
Section 3.11(d), interest and investment income earned in respect of amounts
held in such REO Account as provided in Section 3.06(b) (but only to the extent
of the Net Investment Earnings with respect to such REO Account for any related
Investment Period). The Special
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Servicer shall give notice to the Trustee and the Master Servicer of the
location of each REO Account, and shall give notice to the related Serviced
Non-Trust Mortgage Loan Noteholder(s) of the location of any Loan Combination
REO Account, in each case when first established and of the new location of any
such REO Account prior to any change thereof.
(c) The Special Servicer shall withdraw from the related REO Account
funds necessary for the proper operation, management, leasing, maintenance and
disposition of any Administered REO Property, but only to the extent of amounts
on deposit in such REO Account relating to such REO Property. On the Business
Day following each Trust Determination Date, the Special Servicer shall withdraw
from any Pool REO Account and deposit into the Pool Custodial Account (or
deliver to the Master Servicer or such other Person as may be designated by the
Master Servicer for deposit into the Pool Custodial Account) the aggregate of
all amounts received in respect of each Administered REO Property (other than
any Administered REO Property relating to a Serviced Loan Combination) during
the Trust Collection Period ending on such Trust Determination Date, net of any
withdrawals made out of such amounts pursuant to the preceding sentence and,
further, net of any reserves to be maintained in the Pool REO Account in
accordance with the last sentence of this Section 3.16(c). On the Business Day
following each related Loan Combination Determination Date, the Special Servicer
shall withdraw from the Loan Combination REO Account related to any Serviced
Loan Combination and deposit into the Loan Combination Custodial Account that
relates to such Serviced Loan Combination (or deliver to the Master Servicer or
such other Person as may be designated by the Master Servicer for deposit into
such Loan Combination Custodial Account) the aggregate of all amounts received
in respect of any Administered REO Property that relates to such Serviced Loan
Combination during the related Loan Combination Collection Period ending on such
related Loan Combination Determination Date, net of any withdrawals made out of
such amounts pursuant to the second preceding sentence and, further, net of any
reserves to be maintained in the related Loan Combination REO Account in
accordance with the last sentence of this Section 3.16(c). Notwithstanding the
foregoing, the Special Servicer may retain in the related REO Account such
portion of proceeds and collections in respect of any Administered REO Property
as may be necessary to maintain a reserve of sufficient funds for the proper
operation, management, leasing, maintenance and disposition of such REO Property
(including the creation of a reasonable reserve for repairs, replacements,
necessary capital replacements and other related expenses), such reserve not to
exceed an amount sufficient to cover such items to be incurred during the
following twelve-month period.
(d) The Special Servicer shall keep and maintain separate records, on
a property-by-property basis, for the purpose of accounting for all deposits to,
and withdrawals from, each REO Account pursuant to Section 3.16(b) or (c). The
Special Servicer shall provide the Master Servicer any information with respect
to each REO Account as is reasonably requested by the Master Servicer.
(e) Notwithstanding anything to the contrary, this Section 3.16 shall
not apply to any Outside Administered REO Property.
SECTION 3.17. Management of REO Property.
(a) Prior to the acquisition by it of title to a Mortgaged Property
(other than a Mortgaged Property that secures an Outside Serviced Loan
Combination), the Special Servicer shall review the operation of such Mortgaged
Property and determine the nature of the income that would be
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derived from such property if it were acquired by the Trust Fund. If the Special
Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged
Property would be subject to tax as "net income from foreclosure property"
within the meaning of the REMIC Provisions or would be subject to the tax
imposed on "prohibited transactions" under Section 860F of the Code (either
such tax referred to herein as an "REO Tax"), then such Mortgaged Property
may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as REO Property
could result in income from such property that would be subject to an REO
Tax, but that a lease of such property to another party to operate such
property, or the performance of some services by an Independent Contractor
with respect to such property, or another method of operating such property
would not result in income subject to an REO Tax, then the Special Servicer
may (provided that in the good faith and reasonable judgment of the Special
Servicer, it is commercially reasonable) acquire such Mortgaged Property as
REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such
property as REO Property could result in income subject to an REO Tax and
that no commercially reasonable means exists to operate such property as
REO Property without the Trust Fund incurring or possibly incurring an REO
Tax on income from such property, the Special Servicer shall deliver to the
Tax Administrator, in writing, a proposed plan (the "Proposed Plan") to
manage such property as REO Property. Such plan shall include potential
sources of income, and, to the extent reasonably possible, estimates of the
amount of income from each such source. Upon request of the Special
Servicer, the Tax Administrator shall advise the Special Servicer of the
Tax Administrator's federal income tax reporting position with respect to
the various sources of income that the Trust Fund would derive under the
Proposed Plan. After receiving the information described in the preceding
sentence from the Tax Administrator, the Special Servicer shall implement
the Proposed Plan (after acquiring the respective Mortgaged Property as REO
Property), with any amendments required to be made thereto as a result of
the Tax Administrator's tax reporting position.
The Special Servicer's decision as to how each Administered REO
Property shall be managed and operated shall be based on the Servicing Standard
and, further, based on the good faith and reasonable judgment of the Special
Servicer as to which means would be in the best interest of the
Certificateholders (and, in the case of any Administered REO Property related to
a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan
Noteholder(s)), as a collective whole, by maximizing (to the extent commercially
reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues
received with respect to such property without materially impairing the Special
Servicer's ability to promptly sell such property for a fair price. In
connection with performing their respective duties under this Section 3.17(a),
both the Special Servicer and the Tax Administrator may consult with counsel and
tax accountants, the reasonable cost of which consultation shall be covered by,
and be reimbursable as, a Servicing Advance to be made by the Special Servicer.
(b) If title to any Administered REO Property is acquired, the Special
Servicer shall manage, conserve, protect and operate such REO Property for the
benefit of the Certificateholders (and,
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in the case of any Administered REO Property related to a Serviced Loan
Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s)) solely
for the purpose of its prompt disposition and sale in a manner that does not and
will not: (i) cause such REO Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code for purposes of
Section 860D(a) of the Code; or (ii) except as contemplated by Section 3.17(a),
either result in the receipt by any REMIC Pool of any "income from non-permitted
assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an
Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to the foregoing,
however, the Special Servicer shall have full power and authority to do any and
all things in connection therewith as are consistent with the Servicing Standard
and, consistent therewith, shall withdraw from the related REO Account, to the
extent of amounts on deposit therein with respect to any Administered REO
Property, funds necessary for the proper operation, management, maintenance and
disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell,
protect, manage, operate and restore such REO Property.
To the extent that amounts on deposit in the related REO Account in
respect of any Administered REO Property are insufficient for the purposes set
forth in the preceding sentence with respect to such REO Property, the Master
Servicer shall, at the direction of the Special Servicer, make Servicing
Advances in such amounts as are necessary for such purposes unless the Master
Servicer determines, in accordance with the Servicing Standard, that such
payment would be a Nonrecoverable Advance; provided, however, that the Master
Servicer may make any such Servicing Advance without regard to recoverability if
it is a necessary fee or expense incurred in connection with the defense or
prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special
Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to
such Administered REO Property, if the New Lease, by its terms would give
rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New
Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered
REO Property, other than the completion of a building or other improvement
thereon, and then only if more than 10% of the construction of such
building or other improvement was completed before default on the related
Serviced Mortgage Loan became imminent, all within the meaning of Section
856(e)(4)(B) of the Code; or
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(iv) Directly Operate, or allow any other Person, other than an
Independent Contractor, to Directly Operate such Administered REO Property
on any date more than 90 days after the related REO Acquisition;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Master Servicer, at the
direction of the Special Servicer, and shall be reimbursable as a Servicing
Advance) to the effect that such action would not cause such Administered REO
Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at
any time that it is held by a REMIC Pool, in which case the Special Servicer may
take such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor
for the operation and management of any Administered REO Property; provided
that:
(i) the terms and conditions of any such contract shall not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be
expenses of the Trust Fund and, in the case of any Administered REO
Property that relates to a Serviced Loan Combination, the related Serviced
Non-Trust Mortgage Loan Noteholder(s)) shall be reasonable and customary in
consideration of the nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such
contract shall require, or shall be administered to require, that the
Independent Contractor, in a timely manner, (A) pay out of related REO
Revenues all costs and expenses incurred in connection with the operation
and management of such Administered REO Property, including those listed in
Section 3.17(b) above, and (B) except to the extent that such revenues are
derived from any services rendered by the Independent Contractor to tenants
of such Administered REO Property that are not customarily furnished or
rendered in connection with the rental of real property (within the meaning
of Section 1.856-4(b)(5) of the Treasury regulations or any successor
provision), remit all related revenues collected (net of its fees and such
costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to
any such contract or to actions taken through any such Independent
Contractor shall be deemed to relieve the Special Servicer of any of its
duties and obligations hereunder with respect to the operation and
management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto
to the same extent as if it alone were performing all duties and
obligations in connection with the operation and management of such
Administered REO Property.
(e) The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations under Section 3.16 and this Section 3.17 for indemnification of
the Special Servicer by any such Independent Contractor, and nothing in this
Agreement shall be deemed to limit or modify such indemnification. No agreement
entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing
Agreement for purposes of Section 3.22.
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(f) Notwithstanding anything to the contrary, this Section 3.17 shall
not apply to any Outside Administered REO Property.
SECTION 3.18. Sale of Trust Mortgage Loans and Administered REO
Properties.
(a) The Master Servicer, the Special Servicer or the Trustee may sell
or purchase, or permit the sale or purchase of, a Trust Mortgage Loan or
Administered REO Property only in connection with a Permitted Purchase of such
Trust Mortgage Loan or Administered REO Property, as the case may be, and/or in
connection with a sale of such Administered REO Property in accordance with this
Section 3.18.
(b) Within five (5) Business Days after any Trust Mortgage Loan has
become a Specially Serviced Trust Mortgage Loan, the Special Servicer shall give
notice of such event to the related Serviced Non-Trust Mortgage Loan
Noteholder(s) (if such Trust Mortgage Loan is part of a Serviced Loan
Combination), each Holder of a Certificate of the Controlling Class and the
Trustee. The Special Servicer, any single Certificateholder or any group of
Certificateholders entitled to a majority of the Voting Rights allocated to the
Controlling Class and any assignees of the foregoing parties (collectively, the
"Purchase Option Holders") shall each have the option to purchase such Specially
Serviced Trust Mortgage Loan at a cash price that is at least equal to the
Purchase Price; provided that a material default exists with respect to such
Specially Serviced Trust Mortgage Loan. The Special Servicer shall accept the
first offer by a Purchase Option Holder that is at least equal to the Purchase
Price for the subject Trust Mortgage Loan.
(c) If none of the Purchase Option Holders exercises its option to
purchase any Specially Serviced Trust Mortgage Loan as described in subsection
(b) above, then each Purchase Option Holder will also have the option to
purchase that Specially Serviced Trust Mortgage Loan at a price equal to the
fair value (the "FV Price") of such Specially Serviced Trust Mortgage Loan;
provided that a material default exists with respect to such Specially Serviced
Trust Mortgage Loan. Upon receipt of a request from any Purchase Option Holder
to determine the FV Price in contemplation of its intention to exercise its
option to purchase a Specially Serviced Trust Mortgage Loan as to which a
material default exists at a price that is below the Purchase Price, the Special
Servicer shall promptly obtain an MAI appraisal of the related Mortgaged
Property by an Independent Appraiser (unless such an appraisal was obtained
within one year of such date and the Special Servicer has no knowledge of any
circumstances that would materially affect the validity of such appraisal).
Promptly after obtaining such appraisal, the Special Servicer shall determine
the FV Price for the subject Specially Serviced Trust Mortgage Loan in
accordance with the Servicing Standard and the provisions of subsection (i)
below. Promptly after determining such FV Price, the Special Servicer shall
report such FV Price to the Trustee and each Purchase Option Holder.
(d) If the Special Servicer determines that it is willing, or another
Purchase Option Holder notifies the Special Servicer that it is willing, to
purchase any Specially Serviced Trust Mortgage Loan as to which a material
default exists (the party submitting such bid, the "Initial Bidder") at a price
equal to or above the FV Price (a "FV Bid"), then the Special Servicer shall
notify all other Purchase Option Holders that it has made or received, as the
case may be, such FV Bid (without disclosing the amount of such FV Bid). All
other Purchase Option Holders may submit competing bids within the ten (10)
Business Day period following such notice. At the conclusion of the
above-described ten (10) Business Day period, the Special Servicer shall accept
the highest bid received from any Purchase
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Option Holder that is at least equal to the FV Price for the subject Specially
Serviced Trust Mortgage Loan.
(e) If the Special Servicer accepts the bid of any Purchase Option
Holder, such Purchase Option Holder shall be required to purchase the subject
Specially Serviced Trust Mortgage Loan within ten (10) Business Days of receipt
of notice of such acceptance.
(f) If the Special Servicer has not accepted a FV Bid prior to the
expiration of 120 days from its determination of the FV Price and thereafter
receives a FV Bid or a request from a Purchase Option Holder for an updated FV
Price, the Special Servicer shall within 45 days recalculate the FV Price (with
no presumption that such FV Price should be reduced on account of the lack of an
FV Bid) and repeat the notice and bidding procedure provided in subsection (d)
above until the purchase option terminates under subsection (j) below.
(g) If the party exercising the purchase option at the FV Price for
any Specially Serviced Trust Mortgage Loan is the Special Servicer or an
Affiliate thereof, the Trustee shall verify that the FV Price of such Trust
Mortgage Loan is at least equal to the fair value of such Trust Mortgage Loan.
In conducting such verification, the Trustee will be permitted to conclusively
rely on an appraisal obtained by the Trustee from an Independent Appraiser at
the time it is required to verify such FV Price and/or the opinion of an
Independent expert in real estate matters (including the Master Servicer) with
at least five years' experience in valuing or investing in loans, similar to the
subject Specially Serviced Trust Mortgage Loan, that has been selected by the
Trustee with reasonable care at the expense of the Trust Fund.
(h) Any Purchase Option Holder may, once such purchase option is
exercisable pursuant to this Section 3.18, assign its purchase option with
respect to any Specially Serviced Trust Mortgage Loan to a third party other
than the related Mortgagor or, if such assignment would violate the terms of any
related co-lender, intercreditor or similar agreement, any Affiliate of the
related Mortgagor; and, upon such assignment such third party shall have all of
the rights that had been granted to the Purchase Option Holder hereunder in
respect of the purchase option. Such assignment shall only be effective upon
written notice (together with a copy of the executed assignment and assumption
agreement) being delivered to the Trustee, the Master Servicer and the Special
Servicer. Any Purchase Option Holder that acquires, pursuant to this Section
3.18, a Trust Mortgage Loan that is part of a Loan Combination must satisfy the
requirements for an acceptable transferee under the related Co-Lender Agreement.
(i) In determining the FV Price for any Specially Serviced Trust
Mortgage Loan under this Section 3.18, the Special Servicer may take into
account, among other factors, the results of any appraisal or updated appraisal
that it or the Master Servicer may have obtained in accordance with this
Agreement within the prior twelve months; the opinions on fair value expressed
by Independent investors in mortgage loans comparable to the subject Specially
Serviced Trust Mortgage Loan; the period and amount of any delinquency on the
subject Specially Serviced Trust Mortgage Loan; the physical condition of the
related Mortgaged Property; the state of the local economy; and the expected
recoveries from the subject Specially Serviced Trust Mortgage Loan if the
Special Servicer were to pursue a workout or foreclosure strategy instead of
selling such Mortgage Loan to a Purchase Option Holder.
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(j) The purchase option for any Specially Serviced Trust Mortgage Loan
pursuant to this Section 3.18 shall terminate, and shall not be exercisable as
set forth in subsections (b) and (c) above (or if exercised, but the purchase of
such Specially Serviced Mortgage Loan has not yet occurred, shall terminate and
be of no further force or effect) if and when (i) the Special Servicer has
accepted a FV Bid (although the purchase option shall resume if the Person that
submitted that FV Bid does not complete the purchase of the subject Specially
Serviced Trust Mortgage within the time period provided for under Section
3.18(e)), (ii) such Specially Serviced Trust Mortgage Loan has become a
Corrected Mortgage Loan or is otherwise no longer in material default, (iii) the
related Mortgaged Property has become an REO Property, (iv) a Final Recovery
Determination has been made with respect to such Specially Serviced Mortgage
Loan or (v) the subject Specially Serviced Trust Mortgage Loan has been removed
from the Trust Fund.
(k) Notwithstanding anything herein to the contrary, if and for so
long as an Outside Serviced Trust Mortgage Loan constitutes a "Specially
Serviced Mortgage Loan" (or the equivalent) under the related Outside Servicing
Agreement as to which there exists a material default, then such Outside
Serviced Trust Mortgage Loan shall be deemed a "Specially Serviced Trust
Mortgage Loan" for purposes of, and be subject to the purchase options
contemplated by, Sections 3.18(b) through 3.18(j); provided that the FV Bid may
be calculated based upon, among other things, appraisals and other information
obtained from the related Outside Servicers under the related Outside Servicing
Agreement.
(l) Until such time as a FV Bid is accepted with respect to any
Specially Serviced Trust Mortgage Loan, the Special Servicer shall continue to
pursue all of the other resolution options available to it with respect to such
Specially Serviced Trust Mortgage Loan in accordance with the Servicing
Standard.
(m) Any Specially Serviced Trust Mortgage Loan that is purchased
pursuant to the purchase option provided for in this Section 3.18 will remain
subject to any cure and/or purchase rights of any holder of a related mezzanine
loan in connection with a Mortgage Loan default as set forth in the related
intercreditor agreement. Further, any Trust Mortgage Loan that is part of a Loan
Combination and is purchased pursuant to the purchase option provided for in
this Section 3.18 will remain subject to any cure and/or purchase rights of the
related Serviced Non-Trust Mortgage Loan Noteholder(s) provided for under the
related Co-Lender Agreement.
(n) The Special Servicer shall use its best efforts to solicit bids
for each Administered REO Property in such manner as will be reasonably likely
to realize a fair price within the time period provided for by Section 3.16(a).
Subject to Section 6.11 and/or Section 6.12, if and as applicable, the Special
Servicer shall accept the first (and, if multiple bids are received
contemporaneously or subsequently, the highest) cash bid received from any
Person that constitutes a fair price for such Administered REO Property. If the
Special Servicer reasonably believes that it will be unable to realize a fair
price for any Administered REO Property within the time constraints imposed by
Section 3.16(a), then (subject to Section 6.11 and/or Section 6.12, in each case
if and as applicable) the Special Servicer shall dispose of such Administered
REO Property upon such terms and conditions as the Special Servicer shall deem
necessary and desirable to maximize the recovery thereon under the circumstances
and, in connection therewith, shall accept the highest outstanding cash bid,
regardless of from whom received.
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(o) The Special Servicer shall give the Trustee and the Depositor
prior written notice of its intention to sell any Administered REO Property
pursuant to this Section 3.18.
(p) No Interested Person shall be obligated to submit a bid to
purchase any Administered REO Property, and notwithstanding anything to the
contrary herein, neither the Trustee, in its individual capacity, nor any of its
Affiliates may bid for or purchase any Administered REO Property pursuant
hereto.
(q) Whether any cash bid constitutes a fair price for any Administered
REO Property for purposes of this Section 3.18, shall be determined by the
Special Servicer or, if such cash bid is from the Special Servicer or an
Affiliate of the Special Servicer, by the Trustee. In determining whether any
bid received from the Special Servicer or an Affiliate of the Special Servicer
represents a fair price for any Administered REO Property, the Trustee shall be
supplied with and shall be entitled to rely on the most recent appraisal in the
related Servicing File conducted in accordance with this Agreement within the
preceding 12-month period (or, in the absence of any such appraisal or if there
has been a material change at the subject Administered REO Property since any
such appraisal, on a new appraisal to be obtained by the Special Servicer (the
cost of which shall be covered by, and be reimbursable as, a Servicing
Advance)). The appraiser conducting any such new appraisal shall be an
Independent Appraiser selected by the Special Servicer if neither the Special
Servicer nor any Affiliate thereof is bidding with respect to an Administered
REO Property and selected by the Trustee if either the Special Servicer or any
Affiliate thereof is so bidding. Where any Interested Person is among those
bidding with respect to an Administered REO Property, the Special Servicer shall
require that all bids be submitted to it (and, if the Special Servicer or any
Affiliate thereof is bidding, to the Trustee) in writing and be accompanied by a
refundable deposit of cash in an amount equal to 5% of the bid amount. In
determining whether any bid from a Person other than itself or one of its
Affiliates constitutes a fair price for any Administered REO Property, the
Special Servicer shall take into account the results of any appraisal or updated
appraisal that it or the Master Servicer may have obtained in accordance with
this Agreement within the prior twelve months, and any Independent Appraiser
shall be instructed to take into account, as applicable, among other factors,
the occupancy level and physical condition of the subject Administered REO
Property, the state of the local economy and the obligation to dispose of the
subject Administered REO Property within the time period specified in Section
3.16(a). The Purchase Price for any Administered REO Property shall in all cases
be deemed a fair price. Notwithstanding the other provisions of this Section
3.18, no cash bid from the Special Servicer or any Affiliate thereof shall
constitute a fair price for any Administered REO Property unless such bid is the
highest cash bid received and at least two independent bids (not including the
bid of the Special Servicer or any Affiliate thereof) have been received. In the
event the bid of the Special Servicer or any Affiliate thereof is the only bid
received or is the higher of only two bids received, then additional bids shall
be solicited. If an additional bid or bids, as the case may be, are received and
the original bid of the Special Servicer or any Affiliate thereof is the highest
of all cash bids received, then the bid of the Special Servicer or such
Affiliate shall be accepted, provided that the Trustee has otherwise determined,
as provided above in this Section 3.18(q), that such bid constitutes a fair
price for any Administered REO Property. Any bid by the Special Servicer shall
be unconditional; and, if accepted, the subject Administered REO Property shall
be transferred to the Special Servicer without recourse, representation or
warranty other than customary representations as to title given in connection
with the sale of a real property.
(r) Subject to Sections 3.18(a) through 3.18(q) above, and further
subject to Section 6.11 and/or Section 6.12, in each case if and as applicable,
the Special Servicer shall act on behalf of the
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Trustee in negotiating with independent third parties seeking to purchase an
Administered REO Property and taking any other action necessary or appropriate
in connection with the sale of any Specially Serviced Trust Mortgage Loan or
Administered REO Property pursuant to this Section 3.18, and the collection of
all amounts payable in connection therewith. In connection therewith, the
Special Servicer may charge prospective bidders for any Administered REO
Property, and may retain, fees that approximate the Special Servicer's actual
costs in the preparation and delivery of information pertaining to, or
evaluating bids for, such Administered REO Property without obligation to
deposit such amounts into any Custodial Account. Any sale of a Specially
Serviced Trust Mortgage Loan or an Administered REO Property pursuant to this
Section 3.18 shall be final and without recourse to the Trustee or the Trust,
and if such sale is consummated in accordance with the terms of this Agreement,
neither the Special Servicer nor the Trustee shall have any liability to any
Certificateholder with respect to the purchase price therefor accepted by the
Special Servicer or the Trustee.
(s) Any sale of a Specially Serviced Trust Mortgage Loan or an
Administered REO Property pursuant to this Section 3.18 shall be for cash only
and shall be on a servicing released basis.
SECTION 3.19. Additional Obligations of the Master Servicer and
Special Servicer; Obligations to Notify Ground Lessors
and Hospitality Franchisors; the Special Servicer's
Right to Request the Master Servicer to Make Servicing
Advances; Mortgage Enforcement Actions.
(a) The Master Servicer shall deliver to the Trustee for deposit in
the Collection Account on each Trust Master Servicer Remittance Date, without
any right of reimbursement therefor, an amount equal to the lesser of: (i) the
aggregate amount of all Prepayment Interest Shortfalls, if any, incurred in
connection with Principal Prepayments Received by the Trust, during the most
recently ended applicable Collection Period, with respect to Performing Serviced
Trust Mortgage Loans and, if it constitutes a "Performing Serviced Mortgage
Loan" (or the equivalent) under the related Outside Servicing Agreement, any
Outside Serviced Trust Mortgage Loan; and (ii) the sum of (1) the aggregate of
all Master Servicing Fees received by the Master Servicer during such Collection
Period with respect to the entire Mortgage Pool (but only to the extent of that
portion thereof calculated at a rate of 0.01% per annum with respect to each and
every Trust Mortgage Loan and REO Trust Mortgage Loan) and (2) the aggregate
amount of Prepayment Interest Excesses received in respect of the entire
Mortgage Pool during such Collection Period; provided, however, that if any
Prepayment Interest Shortfall occurs with respect to any Serviced Trust Mortgage
Loan as a result of the Master Servicer's allowing the Mortgagor to deviate from
the terms of the related loan documents regarding principal prepayments, the
Master Servicer shall be obligated to pay an amount equal to the entire
Prepayment Interest Shortfall with respect to the subject Serviced Trust
Mortgage Loan without any limitation of the kind set forth in clauses (1) and
(2) above.
(b) The Master Servicer shall, as to each Serviced Trust Mortgage Loan
which is secured by the interest of the related Mortgagor under a Ground Lease,
even if the corresponding fee interest is encumbered, promptly (and in any event
within 60 days) following the Closing Date, notify the related ground lessor of
the transfer of such Serviced Trust Mortgage Loan to the Trust Fund pursuant to
this Agreement and inform such ground lessor that any notices of default under
the related Ground Lease should thereafter be forwarded to the Master Servicer.
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(c) The Master Servicer shall, as to each Serviced Trust Mortgage Loan
which is secured by the interest of the related Mortgagor in a hospitality
property (as identified on Schedule VI hereto), not later than the later of (i)
30 days following the Master Servicer's receipt of the subject franchise
agreement and (ii) the expiration of the period that may be required for such
notice pursuant to the terms of the applicable franchise documents, if any,
notify the related hospitality franchisor of the transfer of such Serviced Trust
Mortgage Loan to the Trust Fund pursuant to this Agreement and inform such
hospitality franchisor that any notices of default under the related franchise
agreement should thereafter be forwarded to the Master Servicer.
(d) Notwithstanding anything to the contrary contained in this
Agreement, if the Special Servicer is required under this Agreement to make any
Servicing Advance but does not desire to do so, the Special Servicer may, in its
sole discretion, request that the Master Servicer make such Servicing Advance,
such request to be made, in writing, at least five (5) Business Days (or, in an
emergency situation or on an urgent basis, two (2) Business Days, provided that
the written request sets forth the nature of the emergency or the basis of the
urgency) in advance of the date on which such Servicing Advance is required to
be made hereunder and to be accompanied by such information and documentation
regarding the subject Servicing Advance as the Master Servicer may reasonably
request. The Master Servicer shall have the obligation to make any such
Servicing Advance that it is so requested by the Special Servicer to make,
within five (5) Business Days (or, in an emergency situation or on an urgent
basis, two (2) Business Days) of the Master Servicer's receipt of such request.
If the request is timely and properly made, the Special Servicer shall be
relieved of any obligations with respect to a Servicing Advance that it so
requests the Master Servicer to make (regardless of whether or not the Master
Servicer shall make such Servicing Advance). The Master Servicer shall be
entitled to reimbursement for any Servicing Advance made by it at the direction
of the Special Servicer, together with interest thereon in accordance with
Sections 3.05(a) or 3.05A and/or 3.11(g), as applicable, at the same time, in
the same manner and to the same extent as the Master Servicer is entitled with
respect to any other Servicing Advances made thereby.
Notwithstanding the foregoing provisions of this Section 3.19(d), the
Master Servicer shall not be required to make at the direction of the Special
Servicer, any Servicing Advance if the Master Servicer determines in its
reasonable, good faith judgment that such Servicing Advance, although not
characterized by the Special Servicer as a Nonrecoverable Servicing Advance, is
in fact a Nonrecoverable Servicing Advance. The Master Servicer shall notify the
Special Servicer in writing of such determination, which shall be made pursuant
to Section 3.11(h). Any request by the Special Servicer that the Master Servicer
make a Servicing Advance shall be deemed to be a determination by the Special
Servicer that such requested Servicing Advance is not a Nonrecoverable Servicing
Advance, and the Master Servicer, the Trustee and the Fiscal Agent shall be
entitled to conclusively rely on such determination. Upon making a
determination, in accordance with the applicable requirements under Section
3.11(h), that any Servicing Advance previously made or proposed to be made with
respect to a Specially Serviced Mortgage Loan or an Administered REO Property is
a Nonrecoverable Servicing Advance, the Special Servicer shall report to the
Master Servicer and the Trustee the Special Servicer's determination. The Master
Servicer shall be entitled to conclusively rely on such a determination by the
Special Servicer.
(e) The Master Servicer (if a Performing Serviced Trust Mortgage Loan
is involved) and the Special Servicer (if a Specially Serviced Trust Mortgage
Loan or an REO Trust Mortgage Loan is involved) shall each be responsible for:
(i) providing on a timely basis to any lender of any related
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mezzanine debt such notices (including with respect to Mortgage Loan defaults),
reports and other information as may be required from the Trust, as holder of
any Trust Mortgage Loan, under any related co-lender, intercreditor or similar
agreement; and (ii) otherwise taking such actions as are required under or
contemplated by the related co-lender, intercreditor or similar agreement to
permit any lender of related mezzanine debt to exercise any purchase option or
cure rights that it may have with respect to any Trust Mortgage Loan under such
related co-lender, intercreditor or similar agreement.
(f) Upon termination of the Trust Fund, any funds or other assets
remaining in the Loss of Value Reserve Fund, to the extent not otherwise
required to be part of the Available Distribution Amount for the Final
Distribution Date in accordance with Section 3.05(e), shall be distributed to
the Holder or Holders of the Class R-III Certificates. The Trustee and the
Special Servicer shall account for the Loss of Value Reserve Fund as an outside
reserve fund within the meaning of Treasury regulations section 1.860G-2(h) and
not an asset of any REMIC Pool or the Grantor Trust (if created hereunder taking
into account Section 2.05(b)). Furthermore, for all federal tax purposes, the
Trustee and the Special Servicer shall treat: (i) any amounts paid out of the
Loss of Value Reserve Fund to the Certificateholders as distributions by the
REMIC Pools for all federal tax purposes; and (ii) any amounts transferred by a
REMIC Pool to the Loss of Value Reserve Fund as amounts distributed by such
REMIC Pool to the beneficial owner of the Loss of Value Reserve Fund. The Holder
or Holders of the Class R-III Certificates will be the sole beneficial owner(s)
of the Loss of Value Reserve Fund for all income and franchise tax purposes.
(g) Notwithstanding anything to the contrary in this Agreement, the
Special Servicer (and not the Master Servicer) will have the right to direct,
manage, prosecute and/or defend any and all litigation and/or claims relating to
(i) the enforcement of the obligations of a Mortgagor under the related loan
documents (except with respect to the Outside Serviced Trust Mortgage Loans) and
(ii) any claim or action brought by a Mortgagor against the Trust; provided
that, in the event there is a litigation or claim solely relating to or
affecting the Master Servicer or directed solely against the Master Servicer
(and not the Trust or any other party to this Agreement) then the Master
Servicer and not the Special Servicer will have the right, to direct, manage,
prosecute and/or defend such litigation and/or claim; and provided, further,
that in the event there is a litigation or claim relating to or affecting the
Master Servicer and, additionally, the Trust and/or any other party to this
Agreement, then the Special Servicer and not the Master Servicer will have the
right, to direct, manage, prosecute and/or defend such litigation and/or claim,
and the Master Servicer shall (i) be entitled to participate therein and (ii)
consent to any settlement or judgment that may impose liability on or otherwise
materially and adversely affect the Master Servicer; and provided, further, that
(i) 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 the Special Servicer, may retain counsel and appear in any
such proceeding on its own behalf in order to protect and represent its
interests, except that the Special Servicer shall retain the right to manage and
direct any such action, suit, litigation or proceeding, (ii) 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
under the related Mortgage Loan documents, the Special Servicer shall not,
without the prior written consent of the Trustee, (A) initiate any action, suit,
litigation or proceeding in the name of the Trustee, whether in such capacity or
individually, (B) engage counsel to represent the Trustee, or (C) 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, the Trustee to be registered to do business in any state,
and (iii) in the event that any court finds that the Trustee is a
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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 interest, whether as Trustee or
individually, except that the Special Servicer shall retain the right to manage
and direct any such action, suit, litigation or proceeding.
(h) Without the prior written consent of the applicable Mortgage Loan
Seller, the Master Servicing Group (as defined below) shall not disclose to any
Person employed by the Master Servicer or an affiliate thereof that is part of a
business unit that originates or refinances mortgage loans any information that
the Master Servicing Group has received or obtained or generated or is otherwise
in its possession as a result of its acting as Master Servicer hereunder. In
addition, without the prior written consent of the applicable Mortgage Loan
Seller, the Master Servicing Group shall not take any direct action, nor will it
direct a third party to take any action, to refinance or solicit the refinancing
of any Mortgage Loan. For purposes of this Section 3.19(h), the "Master
Servicing Group" shall mean the business unit of the Master Servicer (which,
with respect to Wachovia Bank, National Association, is called Commercial Real
Estate Services) that is in the business of master servicing and/or primary
servicing commercial mortgage loans that are in securitizations. Notwithstanding
the foregoing, the following shall not constitute violations of this Section
3.19(h): (i) dissemination of information or reports as contemplated by this
Agreement, (ii) promotions undertaken by the Master Servicer or any Affiliate of
the Master Servicer which are directed to commercial mortgage loan borrowers,
originators and mortgage brokers generally, which promotions, in each case, are
based upon information that has been acquired from a source other than the
Master Servicing Group, including, without limitation, commercially acquired
mailing lists or information generally available in the public domain, or (iii)
actions taken in connection with serving the refinancing needs of a Mortgagor
who, without such solicitation by the Master Servicer as described in the second
preceding sentence, contacts the Master Servicer in connection with the
refinance of such Mortgage Loan.
(i) If any Serviced Mortgage Loan provides that the applicable grace
period during which any Monthly Payment is due (without giving rise to a
default) does not commence until after notice is given to the related Mortgagor,
then the Master Servicer shall monitor the receipt of all Monthly Payments with
respect to such Mortgage Loan. If any such Monthly Payment on any such Mortgage
Loan is not received by the related Due Date, then the Master Servicer shall use
reasonable efforts to provide, in accordance with the Servicing Standard, as
soon as reasonably practicable, written notice of such failure to the related
Mortgagor sufficient to cause the commencement of the applicable grace period.
SECTION 3.20. Modifications, Waivers, Amendments and Consents;
Defeasance.
(a) Subject to Sections 3.20(b) through 3.20(f) and 3.20(m) below, and
further subject to Section 6.11 and/or Section 6.12, in each case if and as
applicable, and any related intercreditor, co-lender or similar agreement
(including, in the case of a Mortgage Loan that is part of a Serviced Loan
Combination, the related Co-Lender Agreement), the Special Servicer (or, under
the limited circumstances set forth in Section 3.20(c), the Master Servicer)
may, on behalf of the Trustee and, in the case of a Serviced Non-Trust Mortgage
Loan, the related Serviced Non-Trust Mortgage Loan Noteholder, agree to any
modification, extension, waiver or amendment of any term of any Serviced
Mortgage Loan and respond to various Mortgagor requests for consent on the part
of the mortgagee (including the lease reviews and lease consents related
thereto), without the consent of the Trustee, any
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Certificateholder, any Serviced Non-Trust Mortgage Loan Noteholder, the Master
Servicer (in the case of any such action taken by the Special Servicer) or,
except as expressly set forth below, the Special Servicer (in the case of any
such action taken by the Master Servicer). Neither the Master Servicer nor the
Special Servicer (in its capacity as such) may agree with the related Mortgagor
to any modification, extension, waiver or amendment of a Mortgage Loan in an
Outside Serviced Loan Combination.
(b) All modifications, extensions, waivers or amendments of any
Serviced Mortgage Loan, including the lease reviews and lease consents related
thereto, shall be in writing and shall be considered and effected in a manner
consistent with the Servicing Standard. All modifications, extensions, waivers
or amendments of a Co-Lender Agreement shall be in writing and shall be
considered and effected in a manner consistent with the Servicing Standard.
(c) In the case of any Performing Serviced Mortgage Loan, and subject
to the rights of the Special Servicer set forth below, the Master Servicer shall
(without the consent of the Trustee, any Certificateholder, any Serviced
Non-Trust Mortgage Loan Noteholder or, except as expressly set forth below, the
Special Servicer), be responsible for the following:
(i) consenting to subordination of the lien of the subject
Performing Serviced Mortgage Loan to an easement or right-of-way for
utilities, access, parking, public improvements or another purpose,
provided that the Master Servicer has determined in accordance with the
Servicing Standard that such easement or right-of-way shall not materially
interfere with the then-current use of the related Mortgaged Property, the
security intended to be provided by the related Mortgage or the related
Mortgagor's ability to repay the subject Performing Serviced Mortgage Loan,
or materially or adversely affect the value of the related Mortgaged
Property;
(ii) granting waivers of minor covenant defaults (other than
financial covenants) including late financial statements;
(iii) granting releases of non-material parcels of the related
Mortgaged Property (provided that, if the related loan documents expressly
require the mortgagee thereunder to grant its consent to a particular
release upon the satisfaction of certain conditions, then such release
shall be granted as required by the related loan documents);
(iv) approving routine leasing activity with respect to (A)
leases (other than Ground Leases) for less than 5,000 square feet, provided
that no subordination, non-disturbance and attornment agreement exists with
respect to the subject lease, or (B) leases (other than Ground Leases) of
more than 5,000 square feet and less than 10,000 square feet, provided that
(1) no subordination, non-disturbance and attornment agreement exists with
respect to the subject lease and (2) the subject lease does not constitute
more than 20% of the related Mortgaged Property;
(v) approving or consenting to grants of easements and
rights-of-way that do not materially affect the use or value of the related
Mortgaged Property or the related Mortgagor's ability to make any payments
with respect to the subject Performing Serviced Mortgage Loan; and
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(vi) granting other non-material waivers, consents, modifications
or amendments;
provided that, (1) any such modification, waiver or amendment would not in any
way affect a payment term (including (except as provided in Section 3.20(o)
below) a waiver of the payment of assumption fees) of the subject Performing
Serviced Mortgage Loan (other than in the case of a waiver of the payment of
Default Charges), (2) agreeing to such modification, waiver or amendment would
be consistent with the Servicing Standard, (3) agreeing to such modification,
waiver or amendment will not violate the terms, provisions or limitations of
this Agreement, (4) the Master Servicer shall not grant or enter into any
subordination, non-disturbance and attornment agreements (or waivers, consents,
approvals, amendments or modifications in connection therewith) without the
prior written consent of the Special Servicer and (5) any such modification,
waiver or amendment does not materially violate the terms, conditions and
limitations of Section 3.08, if applicable. With respect to any action proposed
to be taken by the Master Servicer under this Section 3.20(c) where any
thresholds in clauses (i) through (vi) of the preceding sentence are exceeded,
or which cannot be taken by the Master Servicer by reason of the proviso to the
previous sentence, the Special Servicer only may take such action (if and to the
extent otherwise permitted under this Agreement).
Except as permitted by Section 3.02(a), Section 3.03(d), Section 3.07,
Section 3.08(a), this Section 3.20(c), Section 3.20(m) and Section 3.20(o), the
Master Servicer may not agree to waive, modify or amend any term of any Serviced
Mortgage Loan (including allowing the Mortgagor to deviate from the terms of the
related loan documents regarding principal prepayments) or respond to any
Mortgagor requests for mortgagee consent and shall forward such requests to the
Special Servicer. Furthermore, the Master Servicer may not agree to any
modification, extension, waiver or amendment of any term of any Serviced
Mortgage Loan that would cause an Adverse REMIC Event with respect to any REMIC
Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust (if
created hereunder taking into account Section 2.05(b)).
(d) Except as provided in Section 3.02(a), Section 3.07, Section 3.08,
Section 3.20(e), Section 3.20(m) and Section 3.20(o), the Special Servicer, on
behalf of the Trustee or, in the case of a Serviced Non-Trust Mortgage Loan, the
related Serviced Non-Trust Mortgage Loan Noteholder, shall not agree or consent
to any modification, extension, waiver or amendment of any term of any Serviced
Mortgage Loan that would:
(i) affect the amount or timing of any scheduled payment of
principal, interest or other amount (including Prepayment Premiums or Yield
Maintenance Charges, but excluding Default Interest and, subject to Section
3.20(o), other 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 effectuate the waiver of
any prepayment restriction thereunder or permit a Principal Prepayment
during any period in which the related loan documents prohibit Principal
Prepayments;
(iii) except as expressly contemplated by the related Mortgage or
pursuant to Section 3.09(d), 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 Independent Appraiser
delivered
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to the Special Servicer at the expense of the related Mortgagor and upon
which the Special Servicer may conclusively rely) of the property to be
released; or
(iv) in the reasonable, good faith judgment of the Special
Servicer, otherwise materially impair the security for such Mortgage Loan
or reduce the likelihood of timely payment of amounts due thereon.
(e) Notwithstanding Section 3.20(d), but subject to Section 3.20(o),
Section 6.11 and/or Section 6.12, in each case if and as applicable, and the
second and third paragraphs of this Section 3.20(e), the Special Servicer may--
(i) reduce the amounts owing under any Specially Serviced
Mortgage Loan by forgiving principal, accrued interest (including
Additional Interest) 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
Mortgage Note, Mortgage or other loan document relating to a Specially
Serviced Mortgage Loan,
(iv) accept a Principal Prepayment on any Specially Serviced
Mortgage Loan during any Lockout Period, or
(v) extend the maturity of any Specially Serviced Mortgage Loan;
provided that (A) the related Mortgagor is in monetary default or material
non-monetary default with respect to such Specially Serviced Mortgage Loan or,
in the reasonable, good faith judgment of the Special Servicer, such default is
reasonably foreseeable, (B) in the reasonable, good faith judgment of the
Special Servicer, such modification, extension, waiver or amendment would
increase the recovery on such Specially Serviced Mortgage Loan to
Certificateholders (as a collective whole) or, if a Serviced Loan Combination is
involved, would increase the recovery on such Loan Combination to
Certificateholders and the related Serviced Non-Trust Mortgage Loan
Noteholder(s) (as a collective whole), on a present value basis (the relevant
discounting of anticipated collections that will be distributable to the
Certificateholders (or, in the case of a Serviced Loan Combination, to
Certificateholders and the related Non-Trust Mortgage Loan Noteholder(s)), to be
performed at the related Mortgage Rate(s)), and (C) such modification,
extension, waiver or amendment would not cause an Adverse REMIC Event in respect
of any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor
Trust (if created hereunder taking into account Section 2.05(b)); and provided,
further, that any modification, extension, waiver or amendment of the payment
terms of a Serviced Loan Combination shall be structured so as to be consistent
with the allocation and payment priorities set forth in the related loan
documents and the related Co-Lender Agreement, such that neither the Trust, as
holder of the Trust Mortgage Loan that constitutes part of that Serviced Loan
Combination, on the one hand, nor any of the related Serviced Non-Trust Mortgage
Loan Noteholders, on the other hand, shall gain a priority over any other such
holder with respect to any payment, which priority is not, as of the date of the
related Co-Lender Agreement, reflected in such loan documents and such Co-Lender
Agreement; and provided, further, that, with respect to any Serviced Loan
Combination, to the extent consistent with the Servicing Standard (taking into
account the extent to which each Serviced Non-Trust
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Mortgage Loan that is part of such Serviced Loan Combination is junior to the
Trust Mortgage Loan that is part of the same Serviced Loan Combination), (1) no
waiver, reduction or deferral of any particular amounts due on the Trust
Mortgage Loan that is part of such Serviced Loan Combination shall be effected
prior to the waiver, reduction or deferral of the entire corresponding item in
respect of each Serviced Non-Trust Mortgage Loan that is part of such Serviced
Loan Combination, and (2) no reduction of the Mortgage Rate on the Trust
Mortgage Loan that is part of such Serviced Loan Combination shall be effected
prior to the reduction of the Mortgage Rate on each Non-Trust Mortgage Loan that
is part of such Serviced Loan Combination, to the fullest extent possible.
Notwithstanding the foregoing, in no event shall the Special Servicer:
(i) extend the maturity date of a Serviced Mortgage Loan beyond the date that is
five years prior to the last Rated Final Distribution Date; (ii) extend the
maturity date of any Serviced Mortgage Loan for more than five years beyond its
Stated Maturity Date; or (iii) if the subject Serviced Mortgage Loan is secured
solely or primarily by a Mortgage on the leasehold interest under a Ground Lease
(but not the related fee interest), extend the maturity date of such Serviced
Mortgage Loan beyond the date which is 20 years (or, to the extent consistent
with the Servicing Standard, giving due consideration to the remaining term of
the Ground Lease, 10 years) prior to the expiration of the term of such Ground
Lease.
The determination of the Special Servicer contemplated by clause (B)
of the proviso to the first paragraph of this Section 3.20(e) shall be evidenced
by an Officer's Certificate to such effect delivered to the Trustee and the
Master Servicer (and, in the case of a Serviced Loan Combination, the related
Serviced Non-Trust Mortgage Loan Noteholder(s)) and describing in reasonable
detail the basis for the Special Servicer's determination. The Special Servicer
shall attach to such Officer's Certificate any information including but not
limited to income and expense statements, rent rolls, property inspection
reports and appraisals that support such determination.
(f) Notwithstanding anything to the contrary in this Agreement, none
of the Trustee, the Master Servicer or the Special Servicer, as applicable,
shall give any consent, approval or direction regarding the termination of the
related property manager or the designation of any replacement property manager
or, if such Mortgaged Property is hospitality property, give any consent,
approval or direction regarding the termination of the franchise or the
designation of a new franchise, with respect to any Mortgaged Property that
secures a Serviced Trust Mortgage Loan that has an unpaid principal balance that
is at least equal to the lesser of $20,000,000 and 2% of the then aggregate
principal balance of the Mortgage Pool, unless: (1) the mortgagee is not given
discretion under the terms of the related Mortgage Loan to withhold its consent;
or (2) it has received prior written confirmation from each Rating Agency that
such action will not result in an Adverse Rating Event with respect to any Class
of Certificates rated by such Rating Agency.
Any party hereto seeking Rating Agency confirmation with respect to
the matters described above shall deliver a Review Package to such Rating
Agency.
(g) Any payment of interest that is deferred pursuant to any
modification, extension, waiver or amendment permitted hereunder, shall not, for
purposes hereof, including calculating monthly distributions to
Certificateholders, be added to the unpaid principal balance or Stated Principal
Balance of the related Serviced Mortgage Loan, notwithstanding that the terms of
such modification, extension, waiver or amendment so permit. The foregoing shall
in no way limit the Special Servicer's ability to
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charge and collect from the Mortgagor costs otherwise collectible under the
terms of the related Mortgage Note.
(h) The Special Servicer or Master Servicer may, as a condition to
granting any request by a Mortgagor for consent, modification, extension, 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 Serviced Mortgage Loan and, further, by the terms of this Agreement and
applicable law, 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, and (ii) any related costs
and expenses incurred by it. Any such fee that is to be shared by the Master
Servicer and the Special Servicer may not be waived or reduced by either such
party without the consent of the other party. In no event shall the Special
Servicer or Master Servicer be entitled to payment for such fees or expenses
unless such payment is collected from the related Mortgagor.
(i) The Special Servicer and Master Servicer shall each notify the
other, any related Sub-Servicers, the Trustee and, if a Serviced Non-Trust
Mortgage Loan is affected, the related Serviced Non-Trust Mortgage Loan
Noteholder, in writing, of any modification, extension, waiver or amendment of
any term of any Serviced Mortgage Loan (including fees charged the Mortgagor)
agreed to by it and the date thereof, and shall deliver to the Trustee or any
related Custodian for deposit in the related Mortgage File (with a copy to be
delivered to or retained by, as applicable, the Master Servicer) and, if a
Serviced Non-Trust Mortgage Loan is affected, the related Serviced Non-Trust
Mortgage Loan Noteholder)), an executed counterpart of the agreement relating to
such modification, extension, waiver or amendment promptly following execution
and delivery thereof, to be followed by an original recorded counterpart
promptly following the recordation (and receipt) thereof.
(j) To the extent that either the Master Servicer or Special Servicer
waives any Default Charge in respect of any Serviced Mortgage Loan, whether
pursuant to Section 3.02(a) or this Section 3.20, the respective amounts of
additional servicing compensation payable to the Master Servicer and the Special
Servicer as Net Default Charges out of such Default Charges shall be reduced
proportionately based upon the respective amounts that would have been payable
thereto as Net Default Charges out of such Default Charges if such waiver had
not been granted.
(k) If, with respect to any Serviced Mortgage Loan (1) under which the
lender can require defeasance in lieu of prepayment, or (2) that permits
defeasance, the Master Servicer shall receive a notice from the related
Mortgagor that it intends to prepay or defease, as applicable, such Serviced
Mortgage Loan in accordance with the terms thereof, then the Master Servicer
shall, subject to the next paragraph and the related loan documents, (i) only in
the case of a Serviced Mortgage Loan under clause (1) above, promptly respond to
such notice in a manner which would require that the Mortgagor pledge Defeasance
Collateral in lieu of such prepayment pursuant to the terms of the related
Mortgage Note, and (ii) notify each Rating Agency, the Trustee, the Underwriters
and the Special Servicer of the intent to defease such Mortgage Loan, and (iii)
upon the written confirmation from each Rating Agency that the acceptance of a
pledge of the Defeasance Collateral (or, in the case of a Serviced Mortgage Loan
under clause (1) above, that the acceptance of a pledge of the Defeasance
Collateral in lieu of a full prepayment) will not result in an Adverse Rating
Event with respect to any Class of Certificates rated by such Rating Agency,
take such further action as provided in such Mortgage Note to effectuate such
defeasance, including the purchase and perfection of the Defeasance Collateral
on behalf of the Trustee (as mortgagee of record on behalf of the
Certificateholders and, in the case of a Serviced
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Loan Combination, the affected Serviced Non-Trust Mortgage Loan Noteholder(s));
provided that the written confirmation contemplated by clause (iii) above shall
not be required (A) from S&P in the case of a Serviced Trust Mortgage Loan (1)
with an unpaid principal balance less than or equal to $20,000,000, (2) that
constitutes less than 5% of the aggregate unpaid principal balance of the
Mortgage Pool and (3) that does not then constitute one of the ten largest
(measured by unpaid principal balance) Trust Mortgage Loans in the Mortgage
Pool, provided that, in lieu of obtaining such written confirmation from S&P,
the Master Servicer delivers to S&P a certification in the form attached hereto
as Exhibit M (a "Defeasance Certificate"), or (B) from Fitch in the case of any
Serviced Trust Mortgage Loan that does not then constitute one of the ten
largest (measured by unpaid principal balance) Trust Mortgage Loans in the
Mortgage Pool or that does not then constitute one of the ten largest groups
(measured by aggregate unpaid principal balance) of Trust Mortgage Loans with
related Mortgagors, provided that, in lieu of obtaining such written
confirmation from Fitch, the Master Servicer may deliver to Fitch a Defeasance
Certificate; and provided, further, that, the written confirmation contemplated
by clause (iii) above shall not be required from S&P and/or Fitch (provided the
Master Servicer delivers a Defeasance Certificate to the applicable Rating
Agency), as applicable, in the event the subject Serviced Trust Mortgage Loan
complies with the then current applicable guidelines set forth by such Rating
Agency, or the unpaid principal balance of the subject Serviced Trust Mortgage
Loan, the percentage the subject Serviced Trust Mortgage Loan constitutes of the
Mortgage Pool or the relative size of the subject Serviced Trust Mortgage Loan
with respect to the Mortgage Pool, as applicable, does not exceed the then
current applicable threshold for review as set forth by such Rating Agency.
Notwithstanding the foregoing, but subject to the related loan
documents, the Master Servicer shall not permit a pledge of Defeasance
Collateral under any Serviced Mortgage Loan that is also a Defeasance Mortgage
Loan if (i) such defeasance would occur within two years of the Startup Day,
(ii) the defeasance collateral shall not be Government Securities, (iii) all
costs to be incurred in connection with such defeasance (including Rating Agency
fees, accountants' fees and costs incurred in connection with any required
opinions of counsel) would not be paid by the related Mortgagor, or (iv) unless
such confirmation is not required pursuant to the first paragraph of this
Section 3.20(k), either Rating Agency does not confirm in writing to the Master
Servicer that the acceptance of a pledge of the Defeasance Collateral (in lieu
of a full prepayment, if applicable) will not result in an Adverse Rating Event
with respect to any Class of Certificates rated by such Rating Agency.
All expenses related to the defeasance of a Serviced Mortgage Loan
shall be charged to the related Mortgagor or other responsible party.
With respect to any Defeasance Serviced Trust Mortgage Loan that is a
Xxxxxx Trust Mortgage Loan, to the extent the related Mortgage Loan documents
expressly grant the lender or its designee the right to appoint a successor
borrower (or words of similar import) thereunder in connection with a
defeasance, the Trustee hereby designates LBHI as its designee with respect to
the exercise of, and hereby grants to LBHI the right, in its capacity as
designee of the Trustee as holder of the subject Serviced Trust Mortgage Loan,
to exercise, the right and/or obligation of the lender under the related
Mortgage Loan documents to appoint a "successor borrower" (as defined under the
related Mortgage Loan documents) or words of similar import, to hold and pledge
the related Defeasance Collateral in the event a related Mortgagor exercises its
right pursuant to the related Mortgage Loan documents to defease the subject
Serviced Trust Mortgage Loan and obtain the release of all or a portion of the
related Mortgaged Property from the lien of the related Mortgage (provided that
such rights and/or obligations as successor borrower shall be exercised in
accordance with customary terms and costs). In connection
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with the foregoing, if the Master Servicer or the Trustee, as holder of the
subject Defeasance Serviced Trust Mortgage Loan, receives written notice from
the related Mortgagor that it intends to defease the subject Xxxxxx Trust
Mortgage Loan in accordance with the related Mortgage Loan documents, then the
Trustee or the Master Servicer, as the case may be, shall send a copy of such
written notice to LBHI or (if LBHI has notified the Master Servicer or the
Trustee, as the case may be, in writing that it has appointed a designee and has
provided such party with such designee's contact information for any notice
required in connection therewith) LBHI's designee, promptly after receipt of
such written notice. If, however, the Master Servicer, in accordance with the
Servicing Standard, determines that neither LBHI nor its designee is performing
the duties related to the appointment of a successor borrower in a timely manner
and/or in accordance with the provisions of the related Mortgage Loan documents
(after LBHI and such designee having been provided with written notice in
accordance with this paragraph and a reasonable period of time (which shall not
be less than five (5) Business Days) to perform such duties), then the Master
Servicer (or a designee of the Master Servicer) shall itself perform those
obligations under the related Mortgage Loan documents in accordance with the
Servicing Standard, applicable law and the related Mortgage Loan documents, and
thereupon the appointment of LBHI or its designee in connection therewith shall
be null and void. In the event, with respect to a Defeasance Serviced Trust
Mortgage Loan that is a Xxxxxx Trust Mortgage Loan, LBHI, the Master Servicer or
a designee of LBHI or the Master Servicer actually appoints a successor borrower
in accordance with the related Mortgage Loan documents and the foregoing
provisions of this paragraph and the relevant portion or all, as applicable, of
the subject Mortgaged Property is released from the lien of the related
Mortgage, then, to the extent provided under the related Mortgage Loan
documents, such successor borrower shall succeed to all of the rights and
obligations of the original Mortgagor under such Xxxxxx Trust Mortgage Loan. In
the event LBHI, by written notice to the Trustee and the Master Servicer,
designates a third party to exercise its rights under this paragraph and
provides contact information therefor, the Trustee and the Master Servicer shall
be entitled to rely on such notice and, in such event, all notices required to
be delivered to LBHI pursuant to this paragraph shall be delivered to LBHI's
designee
(l) If the Master Servicer receives notice from the Mortgagor under
any Early Defeasance Trust Mortgage Loan that such Mortgagor intends to defease
such Early Defeasance Trust Mortgage Loan, in whole or in part, on or before the
second anniversary of the Closing Date, then promptly after receipt of such
notice the Master Servicer shall calculate or cause to be calculated the cash
amount required to be tendered by such Mortgagor to purchase the Defeasance
Collateral or other permitted collateral required to defease such Early
Defeasance Trust Mortgage Loan. If (i) the defeasance is to be in full and the
cash amount required to be tendered by the Mortgagor to purchase the Defeasance
Collateral or other permitted collateral required to defease the subject Early
Defeasance Trust Mortgage Loan (in accordance with the related loan documents)
is less than an amount equal to the Purchase Price (calculated as if the subject
Serviced Trust Mortgage Loan was to be repurchased in connection with a Material
Breach or Material Document Defect as of the date such defeasance is scheduled
to occur), or (ii) the defeasance is to be in part, or (iii) the defeasance is
to be in full and the related Mortgagor is to tender Defeasance Collateral or
such other collateral as is permitted in connection with a defeasance under the
related loan documents that does not constitute a cash amount equal to or
greater than the Purchase Price set forth in clause (i) above, then the Master
Servicer shall promptly notify the Depositor (if such Early Defeasance Trust
Mortgage Loan is a Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller
(if such Early Defeasance Trust Mortgage Loan is a UBS Trust Mortgage Loan), and
upon delivery by the related Mortgagor of the Defeasance Collateral, or cash
sufficient to purchase the Defeasance Collateral, contemplated by the related
loan documents, the
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Depositor (if such Early Defeasance Trust Mortgage Loan is a Xxxxxx Trust
Mortgage Loan) or the UBS Mortgage Loan Seller (if such Early Defeasance Trust
Mortgage Loan is a UBS Trust Mortgage Loan) shall be required, pursuant to or as
contemplated by Section 2.03(j) (if applicable), to repurchase such Early
Defeasance Trust Mortgage Loan on or before the proposed date on which such
Early Defeasance Trust Mortgage Loan will be defeased. The Master Servicer shall
use reasonable efforts to require the Depositor or the UBS Mortgage Loan Seller,
as applicable, to make any such required repurchase described above. If the
defeasance is to be in full and the cash amount required to be tendered by the
Mortgagor to purchase the Defeasance Collateral or other permitted collateral
required to purchase the Defeasance Collateral or other permitted collateral
required to defease the subject Early Defeasance Trust Mortgage Loan is equal to
or exceeds an amount equal to the Purchase Price set forth in clause (i) of the
preceding sentence (as calculated as of the date such purchase is to be made),
then the Master Servicer shall, notwithstanding the related loan documents, (i)
treat the cash amount tendered by such Mortgagor to defease the subject Early
Defeasance Trust Mortgage Loan as a prepayment in full of such Early Defeasance
Trust Mortgage Loan by the related Mortgagor on the related Due Date coinciding
with or next succeeding the defeasance date (and any Excess Defeasance Deposit
Proceeds shall be allocated by the Trustee among and paid to the
Certificateholders in accordance with Section 4.01, with any Excess Defeasance
Deposit Proceeds to constitute, and be treated in the same manner as a payment
of any other type of, Prepayment Consideration), (ii) deposit in the Pool
Custodial Account the cash amount tendered by such Mortgagor to purchase the
Defeasance Collateral or other permitted collateral required to defease the
subject Early Defeasance Trust Mortgage Loan, (iii) xxxx the Mortgage Note
"cancelled" and return it to such Mortgagor, and (iv) take such other and
further action, including the release of the Mortgage with respect to the
related Mortgaged Property, consistent with the prepayment in full of such
Mortgage Loan. The Master Servicer shall promptly notify the Depositor and/or
the UBS Mortgage Loan Seller, as applicable, of the foregoing.
(m) With respect to any ARD Mortgage Loan after its Anticipated
Repayment Date, the Master Servicer shall be permitted, subject to obtaining the
Special Servicer's consent, to waive (such waiver to be in writing addressed to
the related Mortgagor, with a copy to the Trustee) all or any portion of the
accrued Additional Interest on such ARD Mortgage Loan if (i) such ARD Mortgage
Loan is a Performing Serviced Mortgage Loan, (ii) prior to the related maturity
date, the related Mortgagor has requested the right to prepay such ARD Mortgage
Loan in full together with all payments required under such ARD Mortgage Loan in
connection with such prepayment (except for all or a portion of such accrued
Additional Interest), and (iii) the Master Servicer has determined, in its
reasonable, good faith judgment, that the waiver of the Trust's right to receive
such accrued Additional Interest is reasonably likely to produce a greater
payment to Certificateholders (as a collective whole) on a present value basis
(the relevant discounting of anticipated collections that will be distributable
to Certificateholders to be performed at the related Mortgage Rate) than a
refusal to waive the right to such Additional Interest. Neither the Master
Servicer nor the Special Servicer shall have any liability to the Trust, the
Certificateholders or any other Person so long as such determination is
exercised in accordance with the Servicing Standard.
(n) Notwithstanding anything to the contrary in this Agreement, none
of the Special Servicer, the Master Servicer or the Trustee shall: (i) enter
into to any amendment or modification of any Co-Lender Agreement, the effect of
which would materially and adversely affect the interests or materially increase
or change the obligations of any other such Person under such Co-Lender
Agreement, without first consulting with and obtaining the consent of such other
Person; or (ii) enter into any amendment or modification of any Co-Lender
Agreement unless such amendment or
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modification was consistent with the Servicing Standard and satisfied the
requirements for such amendments and modifications set forth in the Co-Lender
Agreement.
(o) Notwithstanding anything to the contrary in this Agreement,
neither the Master Servicer nor the Special Servicer shall waive, modify or
reduce any amount constituting an assumption fee (or portion thereof) payable by
a Mortgagor if and to the extent such assumption fee (or applicable portion
thereof) would be payable to the other such party as additional servicing
compensation, as the case may be, without the consent of such other party. To
the extent that the Master Servicer and the Special Servicer, in accordance with
the preceding sentence, waive (or consent to a waiver of, as applicable) any
amount constituting an assumption fee (or applicable portion thereof) in respect
of any Mortgage Loan, the respective amounts of additional servicing
compensation payable to the Master Servicer and the Special Servicer from such
assumption fee (or applicable portion thereof) shall be reduced proportionately
based upon the respective amounts that would have been payable thereto as
additional servicing compensation from such assumption fee (or applicable
portion thereof) if such waiver had not been granted.
SECTION 3.21. Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping.
(a) Upon determining that a Servicing Transfer Event has occurred with
respect to any Serviced Mortgage Loan that had otherwise been a Performing
Serviced Mortgage Loan, and if the Master Servicer is not also the Special
Servicer, the Master Servicer shall immediately give notice thereof (or, if
applicable, the Special Servicer shall immediately give notice thereof to the
Master Servicer), and the Master Servicer shall deliver a copy of the related
Servicing File, to the Special Servicer and shall use reasonable efforts to
provide the Special Servicer with all information, documents (or copies thereof)
and records (including records stored electronically on computer tapes, magnetic
discs and the like) relating to such Mortgage Loan, either in the Master
Servicer's or any of its directors', officers', employees', affiliates' or
agents' possession or control or otherwise available to the Master Servicer
without undue burden or expense, and reasonably requested by the Special
Servicer to enable it to assume its functions hereunder with respect thereto
without acting through a Sub-Servicer. The Master Servicer shall use reasonable
efforts to comply with the preceding sentence within five (5) Business Days of
the occurrence of each related Servicing Transfer Event (or of notice of the
occurrence of such Servicing Transfer Event, if applicable); provided, however,
that if the information, documents and records requested by the Special Servicer
are not contained in the Servicing File, the Master Servicer shall have such
period of time as reasonably necessary to make such delivery. The Special
Servicer may conclusively rely on the Master Servicer's determination (and the
Master Servicer may conclusively rely on the Special Servicer's determination,
as applicable) that a Servicing Transfer Event has occurred giving rise to a
Serviced Mortgage Loan's becoming a Specially Serviced Mortgage Loan. The
Special Servicer shall not be liable or in default hereunder for any reasonable
act or failure to act because of or arising out of the Master Servicer's failure
to deliver information, documents or records with respect to any Specially
Serviced Mortgage Loan in accordance with the requirements hereof.
Upon determining that a Specially Serviced Mortgage Loan has become a
Corrected Mortgage Loan, and if the Master Servicer is not also the Special
Servicer, the Special Servicer shall immediately give notice thereof, and shall
within five (5) Business Days of such occurrence return the related Servicing
File, together with any and all new information, documents and records relating
to the subject Mortgage Loan that were not part of the Servicing File when it
was delivered to the Special
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Servicer, to the Master Servicer (or such other Person as may be directed by the
Master Servicer) and upon giving such notice, and returning such Servicing File,
to the Master Servicer (or such other Person as may be directed by the Master
Servicer), the Special Servicer's obligation to service such Mortgage Loan, and
the Special Servicer's right to receive the Special Servicing Fee with respect
to such Mortgage Loan shall terminate, and the obligations of the Master
Servicer to service and administer such Mortgage Loan shall resume.
Notwithstanding anything herein to the contrary, in connection with
the transfer to the Special Servicer of the servicing of a Cross-Collateralized
Mortgage Loan as a result of a Servicing Transfer Event or the re-assumption of
servicing responsibilities by the Master Servicer with respect to any such
Serviced Mortgage Loan upon its becoming a Corrected Mortgage Loan, the Master
Servicer and the Special Servicer shall each transfer to the other, as and when
applicable, the servicing of all other Cross-Collateralized Mortgage Loans
constituting part of the same Cross-Collateralized Group; provided that no
Cross-Collateralized Mortgage Loan may become a Corrected Mortgage Loan at
anytime that a continuing Servicing Transfer Event exists with respect to
another Cross-Collateralized Mortgage Loan in the same Cross-Collateralized
Group.
(b) In servicing any Specially Serviced Mortgage Loans, the Special
Servicer shall provide to the Custodian originals of newly executed documents
included within the definition of "Mortgage File" for inclusion in the related
Mortgage File (with a copy of each such original to the Master Servicer), and
shall provide to the Master Servicer copies of any additional related Mortgage
Loan information, including correspondence with the related Mortgagor.
(c) Upon request (and to the extent not otherwise already provided by
the Special Servicer pursuant to its reporting obligations hereunder), the
Special Servicer shall deliver to the Master Servicer, the Trustee and each
Rating Agency (or such other Person as may be directed by the Master Servicer) a
statement in writing and in computer readable format (the form of such statement
to be agreed upon by the Master Servicer and the Special Servicer) describing,
on a loan-by-loan and property-by-property basis, (1) insofar as it relates to
Specially Serviced Mortgage Loans and REO Properties, the information described
in clauses (vii) through (xv) of Section 4.02(a) (with respect to information
set forth in such clauses related to prior Distribution Dates and/or periods,
the Special Servicer may conclusively rely on information furnished to it by the
Master Servicer or the Trustee) and, insofar as it relates to the Special
Servicer, the information described in clauses (xxiv) and (xxx) of Section
4.02(a), (2) the amount of all payments, Insurance Proceeds, Condemnation
Proceeds and Liquidation Proceeds received, and the amount of any Realized Loss
incurred, with respect to each Specially Serviced Mortgage Loan during the
related Collection Period, and the amount of Insurance Proceeds, Condemnation
Proceeds and Liquidation Proceeds received, and the amount of any Realized Loss
incurred, with respect to each Administered REO Property during the related
Collection Period, (3) the amount, purpose and date of all Servicing Advances
made by the Special Servicer with respect to each Specially Serviced Mortgage
Loan and Administered REO Property during the related Collection Period, (4) in
writing, a brief narrative summary of the status of each Specially Serviced
Mortgage Loan and (5) such additional information relating to the Specially
Serviced Mortgage Loans and Administered REO Properties as the Master Servicer
reasonably requests to enable it to perform its responsibilities under this
Agreement. Notwithstanding the foregoing provisions of this subsection (c), the
Master Servicer shall maintain ongoing payment records with respect to each of
the Specially Serviced Mortgage Loans and Administered REO Properties and shall
provide the Special Servicer with any
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information reasonably available to the Master Servicer required by the Special
Servicer to perform its duties under this Agreement.
SECTION 3.22. Sub-Servicing Agreements.
(a) Subject to Section 3.22(b) and Section 3.22(f), the Master
Servicer and the Special Servicer may enter into Sub-Servicing Agreements to
provide for the performance by third parties of any or all of their respective
obligations hereunder, provided that in each case, the Sub-Servicing Agreement:
(i) is consistent with this Agreement in all material respects, requires the
Sub-Servicer to comply with all of the applicable conditions of this Agreement
and, with the exception of Sections 7.01(a)(x) through (xii), provides for
events of default with respect to the Sub-Servicer substantially the same as
those set forth in Section 7.01 (modified as necessary to apply to the
Sub-Servicer's obligations under the Sub-Servicing Agreement); (ii) provides
that if the Master Servicer or the Special Servicer, as the case may be, shall
for any reason no longer act in such capacity hereunder (including by reason of
an Event of Default), the Trustee or its designee may thereupon assume all of
the rights and, except to the extent they arose prior to the date of assumption,
obligations of the Master Servicer or the Special Servicer, as the case may be,
under such agreement or may terminate such sub-servicing agreement without cause
and without payment of any penalty or termination fee (provided, however, that
those Sub-Servicing Agreements in effect as of the Closing Date (or, if being
negotiated as of the Closing Date, in effect within 90 days thereafter) may only
be terminated by the Trustee or its designee as contemplated by Section 3.22(d)
hereof and in such additional manner as is provided in such Sub-Servicing
Agreement); (iii) provides that the Trustee, for the benefit of the
Certificateholders and, in the case of a Sub-Servicing Agreement relating to a
Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan
Noteholder(s), shall each be a third-party beneficiary under such agreement, but
that (except to the extent the Trustee or its designee assumes the obligations
of the Master Servicer or the Special Servicer, as the case may be, thereunder
as contemplated by the immediately preceding clause (ii)) none of the Trustee,
the Trust, any successor Master Servicer or the Special Servicer, as the case
may be, any Serviced Non-Trust Mortgage Loan Noteholder or any Certificateholder
shall have any duties under such agreement or any liabilities arising therefrom;
(iv) permits any purchaser of a Serviced Trust Mortgage Loan pursuant to this
Agreement to terminate such agreement with respect to such purchased Trust
Mortgage Loan at its option and without penalty; (v) does not permit the
Sub-Servicer to enter into or consent to any modification, extension, waiver or
amendment or otherwise take any action on behalf of the Master Servicer or the
Special Servicer contemplated by Section 3.08, Section 3.09 and Section 3.20
hereof without the consent of the Master Servicer or Special Servicer, as the
case may be; (vi) does not permit the Sub-Servicer any direct rights of
indemnification that may be satisfied out of assets of the Trust Fund; (vii)
provides that the Sub-Servicer will deliver to the Master Servicer (A) an annual
accountants' report from a firm of independent public accountants that is a
member of the American Institute of Certified Public Accountants with respect to
the Sub-Servicer and (B) a backup certification substantially similar to the
Master Servicer Backup Certification with respect to the Sub-Servicer, with such
delivery, in the case of the backup certification, to occur at or before the
same times, and under the same circumstances, as the Master Servicer Backup
Certification to be delivered by or with respect to the Master Servicer (except
that each such document delivered by the Sub-Servicer shall only cover the
Mortgage Loans being subserviced thereby); and (viii) includes a representation
by the Sub-Servicer that such Sub-Servicer is not an "affiliate" (as such term
is defined in Section III of PTE 2000-58) of the Trustee or of any "affiliate"
(as such term is defined in Section III of PTE 2000-58) of the Trustee (provided
that this clause (viii) shall not apply to a Sub-Servicer listed on Exhibit K
hereto). In addition, each Sub-Servicing Agreement entered into by the Master
Servicer (including any with an
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effective date on or before the Closing Date) shall provide that such agreement
shall, with respect to any Serviced Mortgage Loan serviced thereunder, terminate
at the time such Mortgage Loan becomes a Specially Serviced Mortgage Loan (or,
alternatively, be subject to the Special Servicer's rights to service such
Serviced Mortgage Loan for so long as such Mortgage Loan continues to be a
Specially Serviced Mortgage Loan), and each Sub-Servicing Agreement entered into
by the Special Servicer shall relate only to Specially Serviced Mortgage Loans
and shall terminate with respect to any such Mortgage Loan which ceases to be a
Specially Serviced Mortgage Loan. The Master Servicer and the Special Servicer
each shall deliver to the Trustee and each other copies of all Sub-Servicing
Agreements (and, to the related Serviced Non-Trust Mortgage Loan Noteholder, a
copy of any Sub-Servicing Agreement in respect of a Serviced Non-Trust Mortgage
Loan), as well as any amendments thereto and modifications thereof, entered into
by it promptly upon its execution and delivery of such documents. References in
this Agreement to actions taken or to be taken by the Master Servicer or the
Special Servicer include actions taken or to be taken by a Sub-Servicer on
behalf of the Master Servicer or the Special Servicer, as the case may be; and,
in connection therewith, all amounts advanced by any Sub-Servicer to satisfy the
obligations of the Master Servicer or the Special Servicer hereunder to make P&I
Advances or Servicing Advances shall be deemed to have been advanced by the
Master Servicer or the Special Servicer, as the case may be, out of its own
funds and, accordingly, such P&I Advances or Servicing Advances shall be
recoverable by such Sub-Servicer in the same manner and out of the same funds as
if such Sub-Servicer were the Master Servicer or the Special Servicer, as the
case may be. For so long as they are outstanding, Advances shall accrue interest
in accordance with Sections 3.11(g) or 4.03(d), as applicable, such interest to
be allocable between the Master Servicer or the Special Servicer, as the case
may be, and such Sub-Servicer as they may agree. For purposes of this Agreement,
the Master Servicer and the Special Servicer each shall be deemed to have
received any payment when a Sub-Servicer retained by it receives such payment.
The Master Servicer and the Special Servicer each shall notify the other, the
Trustee, the Depositor, the Controlling Class Certificateholders and, if a
Serviced Loan Combination is involved, the related Non-Trust Mortgage Loan
Noteholder(s) in writing promptly of the appointment by it of any Sub-Servicer.
(b) Each Sub-Servicer (i) shall be authorized to transact business in
the state or states in which the related Mortgaged Properties it is to service
are situated, if and to the extent required by applicable law, and (ii) except
for any Sub-Servicer that is servicing any of the Serviced Mortgage Loans on the
Closing Date, shall be an approved conventional seller/servicer of mortgage
loans for FHLMC or Xxxxxx Xxx or a HUD-Approved Servicer.
(c) The Master Servicer and the Special Servicer, for the benefit of
the Trustee, the Certificateholders and, in the case of a Serviced Loan
Combination, also for the benefit of the related Serviced Non-Trust Mortgage
Loan Noteholder(s), shall (at no expense to the Trustee, any Certificateholder,
any Serviced Non-Trust Mortgage Loan Noteholder or the Trust Fund) monitor the
performance and enforce the obligations of their respective Sub-Servicers under
the related Sub-Servicing Agreements. Such enforcement, including the legal
prosecution of claims, termination of Sub-Servicing Agreements in accordance
with their respective terms and the pursuit of other appropriate remedies, shall
be in such form and carried out to such an extent and at such time as the Master
Servicer or the Special Servicer, as applicable, in its good faith business
judgment, would require were it the owner of the subject Serviced Mortgage
Loans.
(d) In the event of the resignation, removal or other termination of
the Master Servicer or any successor Master Servicer hereunder for any reason,
the Trustee or other Person
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succeeding such resigning, removed or terminated party as Master Servicer, shall
elect, with respect to any Sub-Servicing Agreement in effect as of the Closing
Date (or, if being negotiated as of the Closing Date, in effect within 90 days
thereafter) that still exists at the time of such termination: (i) to assume the
rights and obligations of the Master Servicer under such Sub-Servicing Agreement
and continue the sub-servicing arrangements thereunder on the same terms
(including the obligation to pay the same sub-servicing fee); (ii) to enter into
a new Sub-Servicing Agreement with such Sub-Servicer on such terms as the
Trustee or other successor Master Servicer and such Sub-Servicer shall mutually
agree (it being understood that such Sub-Servicer is under no obligation to
accept any such new Sub-Servicing Agreement or to enter into or continue
negotiations with the Trustee or other successor Master Servicer), provided that
neither the Trustee nor any successor Master Servicer shall enter into a new
Sub-Servicing Agreement with a Sub-Servicer that was a party to a Sub-Servicing
Agreement as of the Closing Date, if such new Sub-Servicing Agreement amends,
alters or fails to restate any rights of any Underwriter or Mortgage Loan Seller
under the existing Sub-Servicing Agreement with respect to the termination of
the Sub-Servicer and the appointment of a successor thereto or any rights of any
Underwriter or Mortgage Loan Seller as a third-party beneficiary under such
Sub-Servicing Agreement, unless the successor Master Servicer has obtained the
prior written consent to the terms of such new Sub-Servicing Agreement from such
Underwriter or Mortgage Loan Seller, as the case may be; or (iii) to terminate
the Sub-Servicing Agreement if (but only if) an Event of Default (as defined in
such Sub-Servicing Agreement) has occurred and is continuing, without paying any
sub-servicer termination fee, and in any additional manner provided for in such
Sub-Servicing Agreement.
The Sub-Servicers as to which Sub-Servicing Agreements are in effect
or being negotiated as of the Closing Date are listed on Exhibit K hereto.
(e) Notwithstanding any Sub-Servicing Agreement, the Master Servicer
and the Special Servicer shall remain obligated and liable to the Trustee, the
Certificateholders and the Serviced Non-Trust Mortgage Loan Noteholder(s) for
the performance of their respective obligations and duties under this Agreement
in accordance with the provisions hereof to the same extent and under the same
terms and conditions as if each alone were servicing and administering the
Serviced Mortgage Loans and/or Administered REO Properties for which it is
responsible. The Master Servicer and the Special Servicer shall each be
responsible (without right of reimbursement) for all compensation of each
Sub-Servicer retained by it.
(f) Notwithstanding the above, the Special Servicer may not enter into
any Sub-Servicing Agreement without the approval of the Controlling Class
Representative.
SECTION 3.23. Representations and Warranties of the Master Servicer.
(a) The Master Servicer, in such capacity, hereby represents, warrants
and covenants to the other parties hereto and for the benefit of the
Certificateholders and the Serviced Non-Trust Mortgage Loan Noteholders, as of
the Closing Date, that:
(i) The Master Servicer is a national banking association, duly
organized under the laws of the United States, and the Master Servicer is
in compliance with the laws of each state in which any Mortgaged Property
is located to the extent necessary to perform its obligations under this
Agreement.
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(ii) The execution and delivery of this Agreement by the Master
Servicer, and the performance and compliance with the terms of this
Agreement by the Master Servicer, will not: (A) violate the Master
Servicer's organizational documents; or (B) 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 which is applicable to it or
any of its assets, which default or breach, in the good faith and
reasonable judgment of the Master Servicer, would reasonably be expected to
affect materially and adversely either the ability of the Master Servicer
to perform its obligations under this Agreement or the financial condition
of the Master Servicer.
(iii) The Master Servicer has the full power and authority to
enter into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Master Servicer, enforceable against the
Master Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, receivership, insolvency, reorganization, moratorium
and other laws affecting the enforcement of creditors' (including bank
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 Master Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or demand
of any federal, state or local governmental or regulatory authority, which
violation, in the Master Servicer's good faith and reasonable judgment, is
likely to affect materially and adversely either the ability of the Master
Servicer to perform its obligations under this Agreement or the financial
condition of the Master Servicer.
(vi) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened, against the Master Servicer, the outcome
of which, in the Master Servicer's good faith and reasonable judgment,
could reasonably be expected to prohibit the Master Servicer from entering
into this Agreement or materially and adversely affect the ability of the
Master Servicer to perform its obligations under this Agreement.
(vii) Any consent, approval, authorization or order of any court
or governmental agency or body required under federal or state law for the
execution, delivery and performance by the Master Servicer of or compliance
by the Master Servicer with this Agreement or the consummation of the
transactions contemplated by this Agreement has been obtained and is
effective except where the lack of consent, approval, authorization or
order would not have a material adverse effect on the performance by the
Master Servicer under this Agreement.
(viii) The Master Servicer possesses all insurance required
pursuant to Section 3.07(c) of this Agreement.
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(ix) The Master Servicer has reviewed all Sub-Servicing
Agreements in effect as of the Closing Date and will review all
Sub-Servicing Agreements entered into by it after the Closing Date.
(b) The representations and warranties of the Master Servicer set
forth in Section 3.23(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust Fund remains in existence. Upon discovery by
any party hereto of any breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto.
(c) Any successor Master Servicer shall be deemed to have made, as of
the date of its succession, each of the representations and warranties set forth
in Section 3.23(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 3.23(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
SECTION 3.24. Representations and Warranties of the Special Servicer.
(a) The Special Servicer, in such capacity, hereby represents,
warrants and covenants to the other parties hereto and for the benefit of the
Certificateholders and the Serviced Non-Trust Mortgage Loan Noteholders, as of
the Closing Date, that:
(i) The Special Servicer is a corporation validly existing and in
good standing under the laws of the State of Florida, and the Special
Servicer is in compliance with the laws of each state in which any
Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Special
Servicer, and the performance and compliance with the terms of this
Agreement by the Special Servicer, will not: (A) violate the Special
Servicer's organizational documents; or (B) 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 which is applicable to it or
any of its assets, which default or breach, in the good faith and
reasonable judgment of the Special Servicer, would reasonably be expected
to affect materially and adversely either the ability of the Special
Servicer to perform its obligations under this Agreement or the financial
condition of the Special Servicer.
(iii) The Special Servicer has the full power and authority to
enter into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Special Servicer, enforceable against the
Special Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
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(v) The Special Servicer is not in violation of, and its
execution and delivery of this Agreement and its performance and compliance
with the terms of this Agreement will not constitute a violation of, any
law, any order or decree of any court or arbiter, or any order, regulation
or demand of any federal, state or local governmental or regulatory
authority, which violation, in the Special Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Special Servicer to perform its obligations under this
Agreement or the financial condition of the Special Servicer.
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened, against the Special Servicer, the outcome
of which, in the Special Servicer's good faith and reasonable judgment,
could reasonably be expected to prohibit the Special Servicer from entering
into this Agreement or materially and adversely affect the ability of the
Special Servicer to perform its obligations under this Agreement.
(vii) Any consent, approval, authorization or order of any court
or governmental agency or body required under federal or state law for the
execution, delivery and performance by the Special Servicer of or
compliance by the Special Servicer with this Agreement or the consummation
of the transactions contemplated by this Agreement has been obtained and is
effective except where the lack of consent, approval, authorization or
order would not have a material adverse effect on the performance by the
Special Servicer under this Agreement.
(viii) The Special Servicer possesses all insurance required
pursuant to Section 3.07(c) of this Agreement.
(b) The representations and warranties of the Special Servicer set
forth in Section 3.24(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust Fund remains in existence. Upon discovery by
any party hereto of any breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto.
(c) Any successor Special Servicer shall be deemed to have made, as of
the date of its succession, each of the representations and warranties set forth
in Section 3.24(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 3.24(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
SECTION 3.25. Certain Matters Regarding the Purchase of the Trust
Mortgage Loan in a Loan Combination.
If, in connection with a Permitted Purchase, a Trust Mortgage Loan
that is part of a Loan Combination is purchased or repurchased from the Trust
Fund, the purchaser(s) thereof shall be bound by the terms of the related
Co-Lender Agreement and shall assume the rights and obligations of the holder of
such Mortgage Loan under such Co-Lender Agreement. Subject to the terms of the
related Co-Lender Agreement, all portions of the related Mortgage File and other
documents pertaining to the subject Trust Mortgage Loan shall be endorsed or
assigned, to the extent necessary or appropriate, to the purchaser(s) of such
Trust Mortgage Loan in their capacity as holder of such Trust Mortgage Loan (as
a result of such purchase or repurchase) under the related Co-Lender Agreement
in the manner
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contemplated thereunder, which such purchaser(s) shall be deemed to acknowledge.
Thereafter, in the case of a Serviced Combination Trust Mortgage Loan, such
Mortgage File shall be held by the lender responsible for maintaining custody
thereof under the related Co-Lender Agreement, or a custodian appointed thereby,
for the benefit of each of the "Lenders" as defined under, and as their
interests appear under, the related Co-Lender Agreement; provided that the
Mortgage Note for such Serviced Combination Trust Mortgage Loan may be held by
the purchaser(s) of such Mortgage Loan. If the related Servicing File is not
already in the possession of such party, it shall be delivered to the successor
master servicer or special servicer, as the case may be, with respect to the
subject Loan Combination under, or otherwise in accordance with, any applicable
separate servicing agreement for such Loan Combination or as otherwise
contemplated by the related Co-Lender Agreement.
SECTION 3.26. Application of Default Charges.
(a) Any and all Default Charges that are actually Received by the
Trust and deposited in the Pool Custodial Account with respect to any Trust
Mortgage Loan or REO Trust Mortgage Loan during any applicable Collection
Period, shall be applied for the following purposes and in the following order,
in each case to the extent of the remaining portion of such Default Charges:
first, to pay to the Fiscal Agent, the Trustee, the Master
Servicer and the Special Servicer, in that order, any interest due and
owing to such party on any outstanding Advances made thereby with respect
to such Trust Mortgage Loan or REO Trust Mortgage Loan, as the case may be,
which interest on such outstanding Advance accrued on or prior to the date
on which the subject Default Charges were received;
second, to pay any other outstanding expenses (exclusive of
Special Servicing Fees, Liquidation Fees and Workout Fees) incurred with
respect to such Trust Mortgage Loan or REO Trust Mortgage Loan, as the case
may be, that, if paid from collections on the Mortgage Pool other than such
Default Charges, would constitute an Additional Trust Fund Expense;
third, to reimburse the Trust for any interest on Advances paid
to the Fiscal Agent, the Trustee, the Master Servicer or the Special
Servicer since the Closing Date with respect to such Trust Mortgage Loan or
REO Trust Mortgage Loan, as the case may be, which interest payment was
made from collections on the Mortgage Pool (other than Default Charges on
such Trust Mortgage Loan or REO Trust Mortgage Loan) and was not previously
reimbursed under this clause third;
fourth, to reimburse the Trust for any other Additional Trust
Fund Expenses (exclusive of Special Servicing Fees, Liquidation Fees and
Workout Fees) paid since the Closing Date with respect to such Trust
Mortgage Loan or REO Trust Mortgage Loan, as the case may be, which payment
was made from collections on the Mortgage Pool (other than Default Charges
on such Trust Mortgage Loan or REO Trust Mortgage Loan) and was not
previously reimbursed under this clause fourth; and
fifth, to pay any remaining portion of such Default Charges (such
remaining portion, "Net Default Charges") to the extent actually Received
by the Trust as additional master servicing compensation to the Master
Servicer, if they were accrued in respect of an Outside Serviced Trust
Mortgage Loan or a Performing Serviced Trust Mortgage Loan, or as
additional special servicing compensation to the Special Servicer, if they
were accrued in respect of a
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Specially Serviced Trust Mortgage Loan or an REO Trust Mortgage Loan, in
each case pursuant to Section 3.11;
provided that any and all Default Charges that are actually collected with
respect to a Serviced Combination Trust Mortgage Loan shall first be applied
pursuant to the applicable section of this Agreement related to permitted
withdrawals from the related Loan Combination Custodial Account (Section 3.05A)
and the applicable provisions of the related Co-Lender Agreement; and provided,
further, that the total interest on Advances payable pursuant to clause first
above and other expenses payable pursuant to clause second above in connection
with a Serviced Combination Trust Mortgage Loan or any successor REO Trust
Mortgage Loan with respect thereto shall take into account the application of
funds on deposit in the related Loan Combination Custodial Account with respect
to the related Serviced Non-Trust Mortgage Loan(s) or any successor REO Mortgage
Loan(s) with respect thereto to pay such interest on Advances or such other
expenses, as the case may be; and provided, further, that, with respect to a
Serviced Loan Combination, Default Charges that are actually Received by the
Trust with respect to any Serviced Combination Trust Mortgage Loan or REO Trust
Mortgage Loan with respect thereto during any applicable Collection Period shall
be applied to cover the items set forth in clauses first through fourth above
only to the extent that such item or portion of such item (i) is allocable to
such Serviced Combination Trust Mortgage Loan or any successor REO Trust
Mortgage Loan with respect thereto in accordance with the related Co-Lender
Agreement and (ii) is not otherwise first payable, pursuant to Section 3.26(c)
or Section 3.26(d) (and consistent with the related Co-Lender Agreement), out of
amounts otherwise distributable to a related Serviced Non-Trust Mortgage Loan
Noteholder as Default Charges with respect to a related Serviced Non-Trust
Mortgage Loan or any successor REO Mortgage Loan with respect thereto or,
pursuant to Section 3.05A (and consistent with the related Co-Lender Agreement)
out of any other amounts otherwise distributable to a related Serviced Non-Trust
Mortgage Loan Noteholder with respect to a related Serviced Non-Trust Mortgage
Loan or any successor REO Mortgage Loan with respect thereto.
(b) Default Charges applied to reimburse the Trust pursuant to clauses
third and fourth of subsection (a), are intended to be part of the amounts to be
delivered by the Master Servicer to the Trustee pursuant to the first paragraph
of Section 3.04(b) on or before the Trust Master Servicer Remittance Date next
following the applicable Collection Period during which they were received, for
deposit in the Collection Account, subject to application pursuant to Section
3.05(a) for any items payable out of general collections on the Mortgage Pool.
Default Charges applied to pay outstanding interest on Advances in respect of
the related Trust Mortgage Loan or REO Trust Mortgage Loan, as applicable, to
any particular party, pursuant to clause first of subsection (a), shall be
applied to pay such party such interest on Advances in such manner that the
interest that accrued first and has been outstanding the longest shall be paid
first. Default Charges applied to pay outstanding expenses in respect of the
related Trust Mortgage Loan or REO Trust Mortgage Loan, as applicable, pursuant
to clause second of subsection (a), shall be applied to pay such expenses in the
chronological order in which they were incurred. Default Charges applied to
reimburse the Trust pursuant to clauses third and fourth of subsection (a) shall
be deemed to offset either interest paid on Advances or other Additional Trust
Fund Expenses, depending on which clause is applicable, in respect of the
related Trust Mortgage Loan or REO Trust Mortgage Loan, as applicable, in the
chronological order in which such interest accrued or such expenses were
incurred, as applicable (whereupon such interest paid on Advances or such other
Additional Trust Fund Expenses, depending on which clause is applicable, shall
thereafter be deemed to have been paid out of Default Charges in respect of the
related Trust Mortgage Loan or REO Trust Mortgage Loan, as applicable).
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(c) Any and all amounts otherwise distributable to the related
Serviced Non-Trust Mortgage Loan Noteholder as Default Charges with respect to
any Serviced Non-Trust Mortgage Loan or any successor REO Mortgage Loan with
respect thereto, in accordance with the related Co-Lender Agreement, shall be
applied for the following purposes and in the following order, in each case to
the extent of the remaining portion of such amounts and as and to the extent
permitted under the related Co-Lender Agreement, prior to being so distributed
to the related Serviced Non-Trust Mortgage Loan Noteholder:
first, to pay to the Fiscal Agent, the Trustee, the Master
Servicer and the Special Servicer any and all interest on any Servicing
Advances made thereby with respect to the applicable Serviced Loan
Combination or any related REO Property, which interest accrued on or prior
to the date on which such amounts otherwise so distributable as Default
Charges were received (such amounts to be applied in accordance with this
clause first with respect to any such particular party in such manner that
the earliest accrued interest shall be paid first);
second, to pay to the Fiscal Agent, the Trustee and the Master
Servicer any and all interest on any P&I Advances made thereby with respect
to the related Trust Mortgage Loan or any successor REO Trust Mortgage Loan
with respect thereto, which interest accrued on or prior to the date on
which such amounts otherwise so distributable as Default Charges were
received (such amounts to be applied with respect to any such particular
party in such manner that the earliest accrued interest shall be paid
first); and
third, to pay any other expenses reimbursable to any party to
this Agreement from Default Charges pursuant to the related Co-Lender
Agreement, out of amounts otherwise distributable to the related Serviced
Non-Trust Mortgage Loan Noteholder as Default Charges with respect to the
subject Non-Trust Mortgage Loan or any successor REO Mortgage Loan with
respect thereto.
Any amounts otherwise distributable to the related Serviced Non-Trust
Mortgage Loan Noteholder as Default Charges with respect to any Serviced
Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect thereto
that are applied pursuant to clause first or clause second, as applicable, of
the preceding paragraph shall be paid to the Fiscal Agent, the Trustee, the
Master Servicer and, if applicable, the Special Servicer, in that order, in each
case up to the total amount of interest on any Advances so payable to such party
in accordance with such clause first or clause second, as applicable.
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS; REPORTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) On each Distribution Date, through and including the Final
Distribution Date, the Trustee shall, based on, among other things, information
provided by the Master Servicer and, if applicable, the Special Servicer,
withdraw from the Collection Account and apply the Available Distribution Amount
for such Distribution Date, such application to be made for the following
purposes and in the following order of priority, in each case to the extent of
remaining available funds:
first, concurrently, (i) from that portion, if any, of the Available
Distribution Amount for such Distribution Date attributable to Loan Group No. 1,
to make distributions of interest to the Holders of the Class A-1, Class A-2,
Class A-3, Class A-AB and Class A-4 Certificates, pro rata as among such Classes
of Certificateholders in accordance with the respective amounts of Distributable
Certificate Interest payable in respect of such Classes of Certificates on such
Distribution Date, in an amount equal to all Distributable Certificate Interest
in respect of each such Class of Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates, if any, (ii)
from that portion, if any, of the Available Distribution Amount for such
Distribution Date that is attributable to Loan Group No. 2, to make
distributions of interest to the Holders of the Class A-1A Certificates, in an
amount equal to all Distributable Certificate Interest in respect of such Class
of Certificates for such Distribution Date and, to the extent not previously
paid, for all prior Distribution Dates, if any, and (iii) from the entire
Available Distribution Amount for such Distribution Date, distributions of
interest to the Holders of the Class X-CL and Class X-CP Certificates, pro rata
in accordance with the respective amounts of Distributable Certificate Interest
payable in respect of such Classes of Certificates on such Distribution Date, in
an amount equal to all Distributable Certificate Interest in respect of each
such Class of Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates, if any; provided, however,
that if the Available Distribution Amount for the subject Distribution Date or
the applicable portion thereof attributable to either Loan Group is insufficient
to pay in full the total amount of Distributable Certificate Interest, as
provided above, payable in respect of any Class of Senior Certificates on such
Distribution Date, then the entire Available Distribution Amount shall be
applied to make distributions of interest to the Holders of the respective
Classes of the Senior Certificates, pro rata as among such Classes of
Certificateholders in accordance with the respective amounts of Distributable
Certificate Interest payable in respect of such Classes of Certificates on such
Distribution Date, up to an amount equal to all Distributable Certificate
Interest in respect of each such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution Dates,
if any;
second, to make distributions of principal to the Holders of the
respective Classes of the Senior Class A Certificates, in the following amounts
and order of priority:
(i) to the Holders of the Class A-1A Certificates, up to an
amount (not to exceed the Class Principal Balance of the Class A-1A
Certificates outstanding immediately prior to such Distribution Date) equal
to the entire portion of the Adjusted Principal Distribution Amount for
such Distribution Date attributable to Loan Group No. 2;
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(ii) to the Holders of the Class A-AB Certificates, up to an
amount equal to the lesser of (A) the excess, if any, of the Class
Principal Balance of the Class A-AB Certificates outstanding immediately
prior to such Distribution Date, over the Class A-AB Planned Principal
Balance for such Distribution Date, and (B) the entire Adjusted Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of the Class A-1A
Certificates pursuant to subclause (i) of this clause second);
(iii) to the Holders of the Class A-1 Certificates, up to an
amount (not to exceed the Class Principal Balance of the Class A-1
Certificates outstanding immediately prior to such Distribution Date) equal
to the entire Adjusted Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Senior Class A Certificates pursuant to a
prior subclause of this clause second);
(iv) to the Holders of the Class A-2 Certificates, up to an
amount (not to exceed the Class Principal Balance of the Class A-2
Certificates outstanding immediately prior to such Distribution Date) equal
to the entire Adjusted Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Senior Class A Certificates pursuant to a
prior subclause of this clause second);
(v) to the Holders of the Class A-3 Certificates, up to an amount
(not to exceed the Class Principal Balance of the Class A-3 Certificates
outstanding immediately prior to such Distribution Date) equal to the
entire Adjusted Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to the
Holders of any other Class of Senior Class A Certificates pursuant to a
prior subclause of this clause second);
(vi) to the Holders of the Class A-AB Certificates, up to an
amount (not to exceed the Class Principal Balance of the Class A-AB
Certificates outstanding immediately prior to such Distribution Date, net
of any distributions of principal made with respect to the Class A-AB
Certificates on such Distribution Date pursuant to subclause (ii) of this
clause second), up to an amount equal to the entire Adjusted Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of the Class A-AB
Certificates and/or to the Holders of any other Class of Senior Class A
Certificates pursuant to a prior subclause of this clause second);
(vii) to the Holders of the Class A-4 Certificates, up to an
amount (not to exceed the Class Principal Balance of the Class A-4
Certificates outstanding immediately prior to such Distribution Date) equal
to the entire Adjusted Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Senior Class A Certificates pursuant to a
prior subclause of this clause second); and
(viii) to the Holders of the Class A-1A Certificates, up to an
amount (not to exceed the Class Principal Balance of the Class A-1A
Certificates outstanding immediately prior to such Distribution Date, net
of any distributions of principal made with respect to the Class A-1A
Certificates on such Distribution Date pursuant to subclause (i) of this
clause second), up to
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an amount equal to the entire Adjusted Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of the Class A-1A Certificates and/or to
the Holders of any other Class of Senior Class A Certificates pursuant to a
prior subclause of this clause second);
provided, however, that, notwithstanding the immediately preceding clauses (i)
through (viii) of this clause second, on each Distribution Date coinciding with
or following the Senior Class A Principal Distribution Cross-Over Date, and in
any event on the Final Distribution Date, the Trustee shall, pursuant to this
clause second, subject to remaining available funds, make distributions of
principal to the Holders of the respective Classes of the Senior Class A
Certificates, on a pro rata basis, in accordance with the respective Class
Principal Balances of those Classes of Certificates outstanding immediately
prior to such Distribution Date, until the Class Principal Balance of each such
Class of Certificates has been reduced to zero (such distributions of principal
to be made without regard to the Adjusted Principal Distribution Amount for such
Distribution Date);
third, to reimburse the Holders of the respective Classes of the
Senior Class A Certificates, up to an amount equal to, and on a pro rata
basis as among such Classes of Certificateholders in accordance with, the
Loss Reimbursement Amount with respect to each such Class of Certificates
for such Distribution Date; and
fourth, to make distributions of interest to the Holders of the Class
A-M Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
fifth, after the Class Principal Balances of the respective Classes of
the Senior Class A Certificates have been reduced to zero, to make
distributions of principal to the Holders of the Class A-M Certificates, up
to an amount (not to exceed the Class Principal Balance of the Class A-M
Certificates outstanding immediately prior to such Distribution Date) equal
to the entire Adjusted Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date to
the Holders of the respective Classes of the Senior Class A Certificates
pursuant to clause second of this Section 4.01(a)); provided, however,
that, on the Final Distribution Date, the Trustee shall, pursuant to this
clause fifth, subject to remaining available funds, make distributions of
principal to the Holders of the Class A-M Certificates, until the Class
Principal Balance of such Class of Certificates is reduced to zero;
sixth, to reimburse the Holders of the Class A-M Certificates, up to
an amount equal to the Loss Reimbursement Amount with respect to such Class
of Certificates for such Distribution Date;
seventh, to make distributions of interest to the Holders of the Class
A-J Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
eighth, after the Class Principal Balance of the Class A-M
Certificates has been reduced to zero, to make distributions of principal
to the Holders of the Class A-J Certificates, up to an
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amount (not to exceed the Class Principal Balance of the Class A-J
Certificates outstanding immediately prior to such Distribution Date) equal
to the entire Adjusted Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date to
the Holders of the respective Classes of the Senior Class A Certificates
pursuant to clause second of this Section 4.01(a) and/or to the Holders of
the Class A-M Certificates pursuant to clause fifth of this Section
4.01(a)); provided, however, that, on the Final Distribution Date, the
Trustee shall, pursuant to this clause eighth, subject to remaining
available funds, make distributions of principal to the Holders of the
Class A-J Certificates, until the Class Principal Balance of such Class of
Certificates is reduced to zero;
ninth, to reimburse the Holders of the Class A-J Certificates, up to
an amount equal to the Loss Reimbursement Amount with respect to such Class
of Certificates for such Distribution Date; and
tenth, to make distributions to the Holders of the remaining Classes
of the Regular Interest Certificates as provided in Section 4.01(b).
All distributions of interest, if any, made with respect to either the
Class X-CL Certificates or the Class X-CP Certificates on any Distribution Date,
pursuant to this Section 4.01(a), shall be made, and shall be deemed to have
been made, in respect of the various REMIC III Components of the subject Class
of Interest-Only Certificates, pro rata in accordance with the respective
amounts of Distributable Component Interest in respect of such REMIC III
Components for such Distribution Date and, to the extent not previously deemed
paid pursuant to this paragraph, for all prior Distribution Dates, if any.
(b) On each Distribution Date, through and including the Final
Distribution Date, after making the distributions with respect to the Senior
Certificates, the Class A-M Certificates and the Class A-J Certificates provided
for in Section 4.01(a), the Trustee shall, based on information provided by the
Master Servicer and, if applicable, the Special Servicer, apply the remaining
portion, if any, of the Available Distribution Amount for such Distribution to
make the distributions described in the next paragraph to the Holders of the
various Classes of the Class B Through T Certificates, such distributions to be
made sequentially among such Classes of Certificateholders in the alphabetic
order of the Class designations of their respective Certificates (beginning with
the Class B Certificates and ending with the Class T Certificates), in each case
to the extent of the Remaining Available Distribution Amount with respect to the
subject Class of Certificates for such Distribution Date.
On each Distribution Date, through and including the Final
Distribution Date, the Holders of each Class of the Class B Through T
Certificates will be entitled to receive, subject to the Remaining Available
Distribution Amount with respect to such Class of Certificates for such
Distribution Date, the following distributions in the following order of
priority, in each case to the extent of the remaining available funds:
first, distributions of interest, up to an amount equal to all
Distributable Certificate Interest with respect to the subject Class of
Certificates for such Distribution Date and, to the extent not previously
received, for all prior Distribution Dates, if any;
second, distributions of principal, up to an amount (not to exceed the
Class Principal Balance of the subject Class of Certificates outstanding
immediately prior to such Distribution
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Date) equal to the Remaining Adjusted Principal Distribution Amount with
respect to the subject Class of Certificates for such Distribution Date
(or, if such Distribution Date is the Final Distribution Date, then up to
an amount equal to the entire Class Principal Balance of the subject Class
of Certificates immediately prior to, and without regard to the Remaining
Adjusted Principal Distribution Amount with respect to the subject Class of
Certificates for, such Distribution Date); and
third, reimbursements of any and all reductions made in the Class
Principal Balance of the subject Class of Certificates pursuant to Section
4.04(a), up to an amount equal to the Loss Reimbursement Amount with
respect to the subject Class of Certificates for such Distribution Date;
provided that no distributions of principal will be made with respect to any
Class of the Class B Through T Certificates until the reduction to zero of the
Class Principal Balance of each Class of the Class A Certificates, as well as
the Class Principal Balance of each other Class of the Class B Through T
Certificates, if any, that has an earlier alphabetic Class designation (that is,
"Class B" comes before "Class C", "Class C" comes before "Class D", and so
forth) then does the subject Class of Certificates.
Any portion of the Available Distribution Amount that remains after
the distributions with respect to the Regular Interest Certificates in
accordance with Section 4.01(a) and this Section 4.01(b) shall be applied to
make distributions to the Holders of the Residual Interest Certificates in
accordance with Section 4.01(c).
(c) On each Distribution Date, through and including the Final
Distribution Date, after making the distributions with respect to the Regular
Interest Certificates provided for in Sections 4.01(a) and 4.01(b), the Trustee
shall apply the remaining portion, if any, of the Available Distribution Amount
for such Distribution Date for the following purposes and in the following order
of priority, in each case to the extent of remaining available funds:
(i) to make distributions to the Holders of the Class R-III
Certificates, up to an amount equal to the excess, if any, of (A) the
aggregate distributions (other than distributions of Net Prepayment
Consideration) deemed made with respect to the REMIC II Regular Interests
on such Distribution Date pursuant to Section 4.01(l), over (B) the
aggregate distributions made with respect to the Regular Interest
Certificates on such Distribution Date pursuant to Section 4.01(a) and/or
Section 4.01(b);
(ii) to make distributions to the Holders of the Class R-II
Certificates, up to an amount equal to the excess, if any, of (A) the
aggregate distributions (other than distributions of Net Prepayment
Consideration) deemed made with respect to the REMIC I Regular Interests on
such Distribution Date pursuant to Section 4.01(m), over (B) the aggregate
distributions (other than distributions of Net Prepayment Consideration)
deemed made with respect to the REMIC II Regular Interests on such
Distribution Date pursuant to Section 4.01(l);
(iii) subject to Section 2.06(b), to make distributions to the
Holders of the Class R-LR Certificates, up to an amount equal to the
excess, if any, of (A) that portion of the Available Distribution Amount
for such Distribution Date that is allocable to the Early Defeasance Trust
Mortgage Loans and/or any related REO Properties, over (B) the aggregate
distributions (other than distributions of Net Prepayment Consideration)
deemed made with
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respect to the Loan REMIC Regular Interests on such Distribution Date
pursuant to Section 4.01(n); and
(iv) to distribute to the Holders of the Class R-I Certificates
the remaining portion, if any, of the Available Distribution Amount.
(d) On each Distribution Date, through and including the Final
Distribution Date, the Trustee shall withdraw from the Collection Account any
amount Received by the Trust with respect to any Trust Mortgage Loan or REO
Trust Mortgage Loan during the related Collection Period that represents Net
Prepayment Consideration and shall distribute such Net Prepayment Consideration:
first, to the Holders of the respective Classes of YM Principal Balance
Certificates that are entitled to distributions of principal on such
Distribution Date, pursuant to Section 4.01(a) or Section 4.01(b), as
applicable, with respect to the Loan Group that includes the prepaid Trust
Mortgage Loan or REO Trust Mortgage Loan, as the case may be, up to an amount
equal to, and pro rata based on, the respective Prepayment Consideration
Entitlements for such Classes of Certificates for such Distribution Date in
connection with such Net Prepayment Consideration; and second, as follows--(i)
if the subject Distribution Date occurs during or prior to August 2008, on a
pari passu basis to (A) the Holders of the Class X-CL Certificates, in an amount
equal to 93% of any remaining portion of such Net Prepayment Consideration, and
(B) the Holders of the Class X-CP Certificates, in an amount equal to 7% of any
remaining portion of such Net Prepayment Consideration, or (ii) if the subject
Distribution Date occurs after August 2008, but during or prior to August 2010,
on a pari passu basis to (A) the Holders of the Class X-CL Certificates, in an
amount equal to 98% of any remaining portion of such Net Prepayment
Consideration, and (B) the Holders of the Class X-CP Certificates, in an amount
equal to 2% of any remaining portion of such Net Prepayment Consideration, or
(iii) if the subject Distribution Date occurs after August 2010, to the Holders
of the Class X-CL Certificates, in an amount equal to 100% of any remaining
portion of such Net Prepayment Consideration.
For purposes of the foregoing, to the extent that distributions of
principal on any Class of Principal Balance Certificates could be made from
principal amounts allocable to either Loan Group, the Trustee shall assume that
those distributions of principal on that Class of Principal Balance Certificates
are made from principal amounts allocable to each Loan Group, on a pro rata
basis in accordance with the respective principal amounts allocable to each Loan
Group that were available for distributions of principal on that Class. In
connection therewith, (i) distributions of principal made with respect to the
Class A-1A Certificates, pursuant to subclause (i) of clause second of Section
4.01(a), on any Distribution Date prior to both the Senior Class A Principal
Distribution Cross-Over Date and the Final Distribution Date, shall be deemed
made solely from principal amounts allocable to Loan Group No. 2, and (ii) all
other distributions of principal made with respect to any Class of Principal
Balance Certificates, pursuant to Section 4.01(a) or 4.01(b), on any
Distribution Date, shall be deemed made from principal amounts allocable to both
Loan Groups (net of any principal amounts allocable to Loan Group No. 2 that may
have been applied on such Distribution Date as contemplated by clause (i) of
this sentence).
Any Net Prepayment Consideration or portion thereof distributed with
respect to either the Class X-CL Certificates or the Class X-CP Certificates on
any Distribution Date shall be deemed to have been distributed with respect to
the respective REMIC III Components of the subject Class of Interest-Only
Certificates, on a pro rata basis in accordance with the respective amounts by
which the
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Component Notional Amounts of such REMIC III Components were reduced on such
Distribution Date by deemed distributions of principal pursuant to Section
4.01(l).
(e) On each Distribution Date, through and including the Final
Distribution Date, subject to Section 2.05(b), the Trustee shall withdraw from
the Collection Account, and distribute to the Holders of the Class V
Certificates, any amounts that represent Additional Interest Received by the
Trust during the related Collection Period with respect to the ARD Trust
Mortgage Loans (and any successor REO Trust Mortgage Loans with respect
thereto).
(f) On the Final Distribution Date, the Special Servicer shall
withdraw from the Loss of Value Reserve Fund and remit to the Trustee, and (upon
receipt) the Trustee shall distribute to the Holders of the Class R-III
Certificates, any Loss of Value Payments remaining on deposit in the Loss of
Value Reserve Fund as of the Final Distribution Date (after taking into account
any transfer of Loss of Value Payments from the Loss of Value Reserve Fund to
the Collection Account on the immediately preceding Trust Master Servicer
Remittance Date in accordance with Section 3.05(e)).
(g) All distributions made with respect to each Class of Certificates
on each Distribution Date shall be allocated pro rata among the outstanding
Certificates in such Class based on their respective Percentage Interests.
Except as otherwise provided below, all such distributions with respect to each
Class on each Distribution Date shall be made to the Certificateholders of the
respective Class of record at the close of business on the related Record Date
and shall be made by wire transfer of immediately available funds to the account
of any such Certificateholder at a bank or other entity having appropriate
facilities therefor, if such Certificateholder shall have provided the Trustee
with wiring instructions no less than five (5) Business Days prior to the
related Record Date or, in the case of the initial Distribution Date, no later
than the close of business on the later of (i) the fifth Business Day prior to
the related Record Date and (ii) the Closing Date (which wiring instructions may
be in the form of a standing order applicable to all subsequent Distribution
Dates), or otherwise by check mailed to the address of such Certificateholder as
it appears in the Certificate Register. The final distribution on each
Certificate (determined, in the case of a Principal Balance Certificate, without
regard to any possible future reimbursement of any related Loss Reimbursement
Amount) will be made in a like manner, but only upon presentation and surrender
of such Certificate at the offices of the Certificate Registrar or such other
location specified in the notice to Certificateholders of such final
distribution. Prior to any termination of the Trust Fund pursuant to Section
9.01, any distribution that is to be made with respect to a Certificate in
reimbursement of any related Loss Reimbursement Amount, which reimbursement is
to occur after the date on which such Certificate is surrendered as contemplated
by the preceding sentence, will be made by check mailed to the address of the
Certificateholder that surrendered such Certificate as such address last
appeared in the Certificate Register or to any other address of which the
Trustee was subsequently notified in writing. If such check is returned to the
Trustee, then the Trustee, directly or through an agent, shall take such
reasonable steps to contact the related Holder and deliver such check as it
shall deem appropriate. Any funds in respect of a check returned to the Trustee
shall be set aside by the Trustee and held uninvested in trust and credited to
the account of the appropriate Holder. The costs and expenses of locating the
appropriate Holder and holding such funds shall be paid out of such funds. No
interest shall accrue or be payable to any former Holder on any amount held in
trust hereunder. If the Trustee has not, after having taken such reasonable
steps, located the related Holder by the second anniversary of the initial
sending of a check, the Trustee shall, subject to applicable law, distribute the
unclaimed funds to the Class R-III Certificateholders.
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(h) Each distribution with respect to a Book-Entry Certificate shall
be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the related Certificate Owners that it represents and to each indirect
participating brokerage firm for which it acts as agent. Each indirect
participating brokerage firm shall be responsible for disbursing funds to the
related Certificate Owners that it represents. None of the Trustee, the
Certificate Registrar, the Depositor or the Master Servicer shall have any
responsibility therefor except as otherwise provided by this Agreement or
applicable law. The Trustee and the Depositor shall perform their respective
obligations under each Letter of Representations among the Depositor, the
Trustee and the initial Depository dated as of the Closing Date and pertaining
to the Book-Entry Certificates.
(i) The rights of the Certificateholders to receive distributions from
the proceeds of the Trust Fund with respect to the Certificates, and all rights
and interests of the Certificateholders in and to such distributions, shall be
as set forth in this Agreement. Neither the Holders of any Class of Certificates
nor any party hereto shall in any way be responsible or liable to the Holders of
any other Class of Certificates with respect to amounts properly previously
distributed on the Certificates.
(j) Except as otherwise provided in Section 9.01, whenever the Trustee
receives written notification of or expects that the final distribution with
respect to any Class of Certificates (determined, in the case of a Class of
Principal Balance Certificates, without regard to any possible future
reimbursement of any related Loss Reimbursement Amount) will be made on the next
Distribution Date, the Trustee shall, as soon as reasonably practicable and, in
any event, no later than the second Business Day prior to such Distribution
Date, mail to each Holder of record of such Class of Certificates on such date a
notice to the effect that:
(i) the Trustee expects that the final distribution with respect
to such Class of Certificates will be made on such Distribution Date but
only upon presentation and surrender of such Certificates at the office of
the Certificate Registrar or at such other location therein specified, and
(ii) no interest shall accrue on such Certificates from and after
the end of the Interest Accrual Period for such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(j) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, then the Trustee, directly or through an agent, shall take such
steps to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such non-tendering
Certificateholders following the first anniversary of the delivery of such
second notice thereto shall be paid out of such funds. No interest shall accrue
or be payable to any former Holder on
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any amount held in trust pursuant to this paragraph. If all of the Certificates
as to which notice has been given pursuant to this Section 4.01(j) shall not
have been surrendered for cancellation by the second anniversary of the delivery
of the second notice, the Trustee shall, subject to applicable law, distribute
to the Class R-III Certificateholders all unclaimed funds and other assets which
remain subject thereto.
(k) Notwithstanding any other provision of this Agreement, the Trustee
shall comply with all federal withholding requirements respecting payments to
Certificateholders of interest or original issue discount that the Trustee
reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. If the Trustee
does withhold any amount from interest or original issue discount payments or
advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Trustee shall indicate the amount withheld to such
Certificateholder.
(l) All distributions made in respect of each Class of Principal
Balance Certificates on each Distribution Date (including the Final Distribution
Date) pursuant to Section 4.01(a), Section 4.01(b) or Section 4.01(d) shall be
deemed to have first been distributed on such Distribution Date from REMIC II to
REMIC III with respect to the Corresponding REMIC II Regular Interest(s) for
such Class of Certificates; and all distributions made with respect to each
Class of Interest-Only Certificates on each Distribution Date pursuant to
Section 4.01(a) or Section 4.01(d) and allocable to any particular REMIC III
Component of such Class of Certificates, shall be deemed to have first been
distributed on such Distribution Date from REMIC II to REMIC III in respect of
the Corresponding REMIC II Regular Interest for such REMIC III Component. In
each case, if such distribution on any such Class of Certificates was a
distribution of accrued interest, of principal, of additional interest (in the
form of Net Prepayment Consideration or any portion thereof) or in reimbursement
of any Loss Reimbursement Amount with respect to such Class of Certificates,
then the corresponding distribution deemed to be made on a REMIC II Regular
Interest pursuant to the preceding sentence (and, if applicable, the following
paragraph of this Section 4.01(l)) shall be deemed to also be, respectively, a
distribution of accrued interest, of principal, of additional interest (in the
form of Net Prepayment Consideration or any portion thereof) or in reimbursement
of any Loss Reimbursement Amount with respect to such REMIC II Regular Interest.
If a Class of Principal Balance Certificates has two or more
Corresponding REMIC II Regular Interests, then:
(i) deemed distributions of accrued interest made on such
Corresponding REMIC II Regular Interests on any Distribution Date shall be
allocated between or among them, as applicable, on a pro rata basis in
accordance with the respective amounts of Uncertificated Distributable
Interest in respect of such Corresponding REMIC II Regular Interests for
such Distribution Date and, to the extent not previously deemed
distributed, for all prior Distribution Dates, if any;
(ii) deemed distributions of principal made on such Corresponding
REMIC II Regular Interests on any Distribution Date shall be allocated to
them in numeric order (i.e., from lowest number to highest number) of the
respective ending numbers of the respective alphanumeric designations for
such Corresponding REMIC II Regular Interests, in each case up to an amount
equal to the Uncertificated Principal Balance of the subject Corresponding
REMIC II Regular Interest outstanding immediately prior to such
Distribution Date (such that no deemed
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distributions of principal will be made on any such Corresponding REMIC II
Regular Interest until the Uncertificated Principal Balance of each other
such Corresponding REMIC II Regular Interest, if any, with an alphanumeric
designation that ends in a lower number, has been paid in full);
(iii) deemed distributions of additional interest (in the form of
Net Prepayment Consideration or any portion thereof) made on such
Corresponding REMIC II Regular Interests on any Distribution Date shall be
allocated between or among them, as applicable, on a pro rata basis in
accordance with the respective amounts of principal deemed distributed in
respect of such Corresponding REMIC II Regular Interests on such
Distribution Date; and
(iv) deemed distributions made on such Corresponding REMIC II
Regular Interests on any Distribution Date in reimbursement of the Loss
Reimbursement Amounts with respect thereto shall be allocated to them in
the same order that deemed distributions of principal made on such
Corresponding REMIC II Regular Interests are allocated to them pursuant to
subclause (ii) of this paragraph, in each case up to the amount of the Loss
Reimbursement Amount with respect to the subject REMIC II Regular Interest
for such Distribution Date.
The actual distributions made by the Trustee on each Distribution Date
in respect of the REMIC III Certificates pursuant to Section 4.01(a), Section
4.01(b), Section 4.01(c) or Section 4.01(d), as applicable, shall be deemed to
have been so made from the amounts deemed distributed with respect to the REMIC
II Regular Interests on such Distribution Date pursuant to this Section 4.01(l).
Notwithstanding the deemed distributions on the REMIC II Regular Interests
described in this Section 4.01(l), actual distributions of funds from the
Collection Account shall be made only in accordance with Section 4.01(a),
Section 4.01(b), Section 4.01(c), Section 4.01(d) or Section 4.01(e), as
applicable.
(m) On each Distribution Date, through and including the Final
Distribution Date, the Available Distribution Amount for such Distribution Date
shall be deemed to have been distributed from REMIC I to REMIC II for the
following purposes and in the following order of priority, in each case to the
extent of the remainder of such funds:
(i) as deemed distributions of interest with respect to all the
REMIC I Regular Interests, up to an amount equal to, and pro rata in
accordance with, all Uncertificated Distributable Interest with respect to
each REMIC I Regular Interest for such Distribution Date and, to the extent
not previously deemed distributed, for all prior Distribution Dates, if
any;
(ii) as deemed distributions of principal with respect to all the
REMIC I Regular Interests, up to an amount equal to, and pro rata in
accordance with, as to each REMIC I Regular Interest, the portion of the
Principal Distribution Amount for such Distribution Date attributable to
the related Trust Mortgage Loan or any successor REO Trust Mortgage Loan
with respect thereto; and
(iii) as deemed distributions of reimbursement with respect to
all the REMIC I Regular Interests, up to an amount equal to, and pro rata
in accordance with, any Loss Reimbursement Amount with respect to each
REMIC I Regular Interest for such Distribution Date (with compounded
interest at the related REMIC I Remittance Rate in effect from time to
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time on the aggregate amount of unreimbursed reductions made from time to
time in the Uncertificated Principal Balance of such REMIC I Regular
Interest pursuant to Section 4.04(c)).
Any Net Prepayment Consideration distributed to any Class of Regular
Interest Certificates on any Distribution Date shall, in each case, be deemed to
have been distributed on such Distribution Date from REMIC I to REMIC II in
respect of the REMIC I Regular Interest corresponding to the prepaid Trust
Mortgage Loan or REO Trust Mortgage Loan, as the case may be, in respect of
which such Net Prepayment Consideration was received.
The actual distributions made by the Trustee on each Distribution Date
in respect of the REMIC III Certificates and the Class R-II Certificates
pursuant to Section 4.01(a), Section 4.01(b), Section 4.01(c) or Section
4.01(d), as applicable, as well as the deemed distributions made on each
Distribution Date in respect of the REMIC II Regular Interests pursuant to
Section 4.01(l), shall be deemed to have been so made from the amounts deemed
distributed with respect to the REMIC I Regular Interests on such Distribution
Date pursuant to this Section 4.01(m). Notwithstanding the deemed distributions
on the REMIC I Regular Interests described in this Section 4.01(m), actual
distributions of funds from the Collection Account shall be made only in
accordance with Section 4.01(a), Section 4.01(b), Section 4.01(c), Section
4.01(d) or Section 4.01(e), as applicable.
(n) On each Distribution Date, through and including the Final
Distribution Date, any portion of the Available Distribution Amount for such
date allocable to an Early Defeasance Trust Mortgage Loan (or any successor REO
Trust Mortgage Loan with respect thereto) shall be deemed to have first been
distributed from the related Loan REMIC to REMIC I in respect of the
corresponding Loan REMIC Regular Interest, in each case to the extent of the
remaining portions of such funds, for the following purposes and in the
following order of priority:
(i) as deemed distributions of interest in respect of the related
Loan REMIC Regular Interest, up to an amount equal to all Uncertificated
Distributable Interest in respect of such Loan REMIC Regular Interest for
such Distribution Date and, to the extent not previously deemed
distributed, for all prior Distribution Dates, if any;
(ii) as deemed distributions of principal in respect of the
related Loan REMIC Regular Interest, up to an amount equal to the portion
of the Principal Distribution Amount for such Distribution Date
attributable to such Early Defeasance Trust Mortgage Loan (or any successor
REO Trust Mortgage Loan with respect thereto); and
(iii) as deemed distributions of reimbursement with respect to
the related Loan REMIC Regular Interest, up to an amount equal to any Loss
Reimbursement Amount with respect to the related Loan REMIC Regular
Interest for such Distribution Date (with compounded interest at the
related Loan REMIC Remittance Rate in effect from time to time on the
aggregate amount of unreimbursed reductions made from time to time in the
Uncertificated Principal Balance of the related Loan REMIC Regular Interest
pursuant to Section 4.04(d)).
Any Net Prepayment Consideration distributed to any Class of Regular
Interest Certificates on any Distribution Date that is allocable to an Early
Defeasance Trust Mortgage Loan (or any successor REO Trust Mortgage Loan with
respect thereto) shall, in each case, be deemed to have been distributed on such
Distribution Date from the related Loan REMIC to REMIC I in respect of the Loan
REMIC Regular Interest corresponding to the prepaid Early Defeasance Trust
Mortgage Loan (or
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any successor REO Trust Mortgage Loan with respect thereto) as to which such Net
Prepayment Consideration was received.
The actual distributions made by the Trustee on each Distribution Date
in respect of the REMIC III Certificates, the Class R-II Certificates and the
Class R-I Certificates pursuant to Section 4.01(a), Section 4.01(b), Section
4.01(c) or Section 4.01(d), as applicable, shall be deemed to have been so made
in part from the amounts deemed distributed with respect to the Loan REMIC
Regular Interests, if any, on such Distribution Date pursuant to this Section
4.01(n). Notwithstanding the deemed distributions on the Loan REMIC Regular
Interests, if any, described in this Section 4.01(n), actual distributions of
funds from the Collection Account shall be made only in accordance with Section
4.01(a), Section 4.01(b), Section 4.01(c), Section 4.01(d) or Section 4.01(e),
as applicable.
Notwithstanding the foregoing, the applicability of this Section
4.01(n) shall be subject to Section 2.06(b).
SECTION 4.02. Statements to Certificateholders and Others.
(a) On each Distribution Date, the Trustee shall provide or make
available electronically to the Depositor, the Underwriters, the Master
Servicer, the Special Servicer, the Controlling Class Representative, each
Rating Agency, the Holders of each Class of Certificates and, upon their written
request to the Trustee, any Certificate Owners of the Book-Entry Certificates as
may be identified to the reasonable satisfaction of the Trustee, a statement,
substantially in the form attached hereto as Exhibit B (a "Distribution Date
Statement"), together with the CMSA Bond Level File, the CMSA Collateral Summary
File and the Mortgage Pool Data Update Report, based on information provided to
it by the Master Servicer and/or the Special Servicer, setting forth, without
limitation:
(i) the amount of the distribution on such Distribution Date to
the Holders of each Class of Principal Balance Certificates in reduction of
the Class Principal Balance thereof;
(ii) the amount of the distribution on such Distribution Date to
the Holders of each Class of Regular Interest Certificates allocable to
Distributable Certificate Interest;
(iii) the amount of the distribution on such Distribution Date to
the Holders of each Class of Regular Interest Certificates allocable to
Prepayment Consideration;
(iv) the amount of the distribution on such Distribution Date to
the Holders of each Class of Principal Balance Certificates in
reimbursement of any related Loss Reimbursement Amount for such
Distribution Date;
(v) the Available Distribution Amount for such Distribution Date
and the respective portions of such Available Distribution Amount
attributable to each Loan Group;
(vi) the aggregate amount of P&I Advances made in respect of the
Mortgage Pool for such Distribution Date pursuant to Section 4.03(a);
(vii) (A) the aggregate amount of xxxxxxxxxxxx X&X Advances that
had been outstanding with respect to the Mortgage Pool at the close of
business on the related
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Determination Date and the aggregate amount of any interest accrued and
payable to the Master Servicer, the Trustee or the Fiscal Agent in respect
of any such xxxxxxxxxxxx X&X Advances in accordance with Section 4.03(d) as
of the close of business on such related Determination Date and (B) the
aggregate amount of unreimbursed Servicing Advances (and/or comparable
advances made in respect of an Outside Serviced Trust Mortgage Loan or
related REO Property pursuant to the related Outside Servicing Agreement)
that had been outstanding with respect to the Mortgage Pool as of the close
of business on the related Determination Date (or, in the case of an
Outside Serviced Trust Mortgage Loan or any related REO Property, as of the
end of the related Underlying Collection Period) and the aggregate amount
of interest accrued and payable to the Master Servicer, the Special
Servicer, the Trustee or the Fiscal Agent (or, if applicable, to a party
under an Outside Servicing Agreement) in respect of such unreimbursed
Servicing Advances in accordance with Section 3.11(g) (or, if applicable,
any such comparable advance(s) in accordance with the related Outside
Servicing Agreement) as of the close of business on such related
Determination Date (or, in the case of an Outside Serviced Trust Mortgage
Loan or any related REO Property, as of the end of the related Underlying
Collection Period);
(viii) the aggregate unpaid principal balance of the Mortgage
Pool and each Loan Group outstanding as of the close of business on the
related Determination Date (or, in the case of an Outside Serviced Trust
Mortgage Loan or any successor REO Trust Mortgage Loan with respect
thereto, as of the end of the related Underlying Collection Period) and the
aggregate Stated Principal Balance of the Mortgage Pool and each Loan Group
outstanding immediately before and immediately after such Distribution
Date;
(ix) the number, aggregate unpaid principal balance, weighted
average remaining term to maturity and weighted average Mortgage Rate of
the Trust Mortgage Loans (but not the REO Trust Mortgage Loans) as of the
close of business on the related Determination Date (or, in the case of an
Outside Serviced Trust Mortgage Loan, as of the end of the related
Underlying Collection Period);
(x) the number, aggregate unpaid principal balance (as of the
close of business on the related Determination Date (or, in the case of an
Outside Serviced Trust Mortgage Loan, as of the end of the related
Underlying Collection Period) and aggregate Stated Principal Balance
(immediately after such Distribution Date) of Trust Mortgage Loans (A)
delinquent 30 to 59 days, (B) delinquent 60 to 89 days, (C) delinquent 90
or more days, (D) as to which foreclosure proceedings have been commenced,
and (E) as to which, to the knowledge of the Master Servicer or the Special
Servicer, as applicable, bankruptcy proceedings have commenced in respect
of the related Mortgagor;
(xi) as to each Trust Mortgage Loan referred to in the preceding
clause (x) above, (A) the loan number thereof, (B) the Stated Principal
Balance thereof immediately following such Distribution Date and (C)
whether the delinquency is in respect of its Balloon Payment;
(xii) with respect to any Trust Mortgage Loan as to which a
Liquidation Event occurred during the related Collection Period (or, in the
case of a Final Recovery Determination with respect to an Outside Serviced
Trust Mortgage Loan, during the related Underlying Collection Period), (A)
the loan number thereof, (B) the nature of the Liquidation
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Event and, in the case of a Final Recovery Determination, a brief
description of the basis for such Final Recovery Determination, (C) the
aggregate of all Liquidation Proceeds and other amounts received in
connection with such Liquidation Event (separately identifying the portion
thereof allocable to distributions on the Certificates), and (D) the
aggregate amount of any Realized Loss and Additional Trust Fund Expenses in
connection with such Liquidation Event;
(xiii) with respect to any REO Property that was included (or an
interest in which was included) in the Trust Fund as of the close of
business on the related Determination Date (or, in the case of an Outside
Administered REO Property, as of the end of the related Underlying
Collection Period), the loan number of the related Trust Mortgage Loan, the
book value of such REO Property and the amount of REO Revenues and other
amounts, if any, Received by the Trust with respect to such REO Property
during the related Collection Period (separately identifying the portion
thereof allocable to distributions on the Certificates) and, if available,
the Appraised Value of such REO Property as expressed in the most recent
appraisal thereof and the date of such appraisal;
(xiv) with respect to any Trust Mortgage Loan as to which the
related Mortgaged Property became an REO Property during the related
Collection Period (or, in the case of an REO Acquisition of an Outside
Administered REO Property, during the related Underlying Collection
Period), the loan number of such Trust Mortgage Loan and the Stated
Principal Balance of such Trust Mortgage Loan as of the related Acquisition
Date;
(xv) with respect to any REO Property as to which a Final
Recovery Determination was made during the related Collection Period (or,
in the case of an Outside Administered REO Property, during the related
Underlying Collection Period), (A) the loan number of the related Trust
Mortgage Loan, (B) a brief description of the basis for the Final Recovery
Determination, (C) the aggregate of all Liquidation Proceeds and other
amounts Received by the Trust with respect to such REO Property during the
related Collection Period (separately identifying the portion thereof
allocable to distributions on the Certificates), (D) the aggregate amount
of any Realized Loss and Additional Trust Fund Expenses in respect of the
related REO Trust Mortgage Loan in connection with such Final Recovery
Determination and (E), if available, the Appraised Value of such REO
Property as expressed in the most recent appraisal thereof and the date of
such appraisal;
(xvi) the Distributable Certificate Interest and Accrued
Certificate Interest in respect of each Class of Regular Interest
Certificates for such Distribution Date or the related Interest Accrual
Period, as applicable;
(xvii) any unpaid Distributable Certificate Interest in respect
of each Class of Regular Interest Certificates after giving effect to the
distributions made on such Distribution Date, and if the full amount of the
Adjusted Principal Distribution Amount was not distributed on such
Distribution Date, the portion of the shortfall affecting each Class of
Principal Balance Certificates;
(xviii) the Pass-Through Rate for each Class of Regular Interest
Certificates for such Distribution Date;
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(xix) the Principal Distribution Amount and the Adjusted
Principal Distribution Amount, respectively, for such Distribution Date,
separately identifying the respective components thereof (and, in the case
of any Principal Prepayment or other unscheduled collection of principal
Received by the Trust during the related Collection Period, the loan number
for the related Trust Mortgage Loan and the amount of such prepayment or
other collection of principal), and the respective portions thereof
attributable to each Loan Group;
(xx) the aggregate of (A) all Realized Losses incurred during the
related Collection Period (or, in the case of an Outside Serviced Trust
Mortgage Loan or an Outside Administered REO Property, during the related
Underlying Collection Period) and, as of the related Determination Date,
from the Closing Date and (B) all Additional Trust Fund Expenses (with a
description thereof) incurred during the related Collection Period (or, in
the case of an Outside Serviced Trust Mortgage Loan or an Outside
Administered REO Property, during the related Underlying Collection Period)
and, as of the related Determination Date, from the Closing Date;
(xxi) the aggregate of all Realized Losses and Additional Trust
Fund Expenses that remain unallocated immediately following such
Distribution Date;
(xxii) the Class Principal Balance of each Class of Principal
Balance Certificates and the Class Notional Amount of each Class of
Interest-Only Certificates, outstanding immediately before and immediately
after such Distribution Date, separately identifying any reduction therein
pursuant to Section 4.04 on such Distribution Date;
(xxiii) the Certificate Factor for each Class of Regular Interest
Certificates immediately following such Distribution Date;
(xxiv) the aggregate amount of any interest on Advances in
respect of the Mortgage Pool paid to the Master Servicer, the Trustee, the
Fiscal Agent or any other party hereto during the related Collection Period
in accordance with Section 3.11(g) and/or Section 4.03(d) (and the
aggregate amount of interest on servicing advances in respect of an Outside
Serviced Trust Mortgage Loan or any Outside Administered REO Property paid
to any Outside Servicer or other applicable party during the related
Underlying Collection Period in accordance with the related Outside
Servicing Agreement);
(xxv) (A) the loan number for each Required Appraisal Loan (and
each Outside Serviced Trust Mortgage Loan or any successor REO Trust
Mortgage Loan with respect thereto with a similar status under the related
Outside Servicing Agreement) and any related Appraisal Reduction Amount
(including an itemized calculation thereof) as of the related Determination
Date and (B) the aggregate Appraisal Reduction Amount for all Required
Appraisal Loans (and each Outside Serviced Trust Mortgage Loan or any
successor REO Trust Mortgage Loan with respect thereto with a similar
status under the related Outside Servicing Agreement) as of the related
Determination Date (or, in the case of an Outside Serviced Trust Mortgage
Loan or any successor REO Trust Mortgage Loan with respect thereto, if
applicable, as of the end of the related Underlying Collection Period);
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(xxvi) on a cumulative basis from the Cut-off Date, the number,
aggregate Stated Principal Balance immediately after such Distribution Date
(in the case of subclauses (A), (B) and (E)), aggregate Cut-off Date
Balance (in the case of subclauses (C) and (D)), weighted average extension
period (except in the case of subclause (B) and which shall be zero in the
case of subclause (C)), and weighted average anticipated extension period
(in the case of subclause (B)) of Trust Mortgage Loans (A) as to which the
maturity dates have been extended, (B) as to which the maturity dates are
in the process of being extended, (C) that have paid off and were never
extended, (D) as to which the maturity dates had previously been extended
and have paid off and (E) as to which the maturity dates had been
previously extended and are in the process of being further extended;
(xxvii) the original and then current credit support levels for
each Class of Regular Interest Certificates;
(xxviii) the original and then current ratings, if any, for each
Class of Regular Interest Certificates;
(xxix) the aggregate amount of Prepayment Consideration Received
by the Trust (A) during the related Collection Period and (B) during the
period from and including the Closing Date to and including the related
Determination Date;
(xxx) (A) the aggregate amount of servicing compensation in
respect of the Mortgage Pool (separately identifying the amount of each
category of compensation) paid to the Master Servicer, the Special Servicer
and, if payable directly out of the Trust Fund without a reduction in the
servicing compensation otherwise payable to the Master Servicer or the
Special Servicer, to each Sub-Servicer, during the related Collection
Period, (B) the aggregate amount of servicing compensation in respect of
each Outside Serviced Trust Mortgage Loan or any successor REO Trust
Mortgage Loan with respect thereto (separately identifying the amount of
each category of compensation) paid to the related Outside Servicers during
the related Underlying Collection Period and (C) such other information as
the Trustee is required by the Code or other applicable law to furnish to
enable Certificateholders to prepare their tax returns; and
(xxxi) the amounts, if any, actually distributed with respect to
each Class of Residual Interest Certificates on such Distribution Date.
In the case of information to be furnished pursuant to clauses (i)
through (iv) above, the amounts shall be expressed as a dollar amount in the
aggregate for all Certificates of each applicable Class and per Single
Certificate. In the case of information provided to the Trustee as a basis for
information to be furnished pursuant to clauses (vi) through (xv), (xix), (xx),
(xxi), (xxiv), (xxv), (xxvi), (xxix) and (xxx) above, insofar as the underlying
information is solely within the control of the Special Servicer or the Master
Servicer, the Trustee may, absent manifest error, conclusively rely on the
reports to be provided by the Special Servicer or the Master Servicer.
The Trustee shall forward electronically a copy of each Distribution
Date Statement to the Depository.
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(b) The Trustee shall make available each month, to
Certificateholders, Certificate Owners, the Underwriters, the Rating Agencies,
the Controlling Class Representative, any party hereto, any Person identified by
any Certificateholder or Certificate Owner as a prospective transferee or any
designee of the Depositor, via the Trustee's internet website, on a restricted
basis, with the use of a password provided by the Trustee to such Person upon
request and, in the case of a Certificateholder, a Certificate Owner or a
prospective transferee of a Certificate or any interest therein, upon receipt by
the Trustee from such Person of a certification substantially in the form of
Exhibit L-1 or Exhibit L-2, as applicable, all Certificateholder Reports and any
additional files containing substantially similar information in an alternative
format and, with the consent or at the direction of the Depositor, such other
information regarding the Certificates and/or the Mortgage Pool as the Trustee
may have in its possession. Notwithstanding the foregoing, any reports required
to be included in the Certificateholder Reports with respect to an Outside
Serviced Trust Mortgage Loan or any Outside Administered REO Property shall be
forwarded or otherwise made available by the Trustee in accordance with this
paragraph only to the extent that such information is actually received by the
Trustee. The Trustee will make no representations or warranties as to the
accuracy or completeness of such documents and will assume no responsibility
therefor.
The Trustee's internet website shall initially be located at
xxx.xxxxxxxx.xxx or at such other address as shall be specified by the Trustee
from time to time in the Distribution Date Statement and in one or more written
notices delivered to the parties hereto, the Controlling Class Representative
(if any), the Certificateholders and the Rating Agencies. In connection with
providing access to the Trustee's internet website, the Trustee may require the
acceptance of a disclaimer. The Trustee shall not be liable for the
dissemination of information in accordance with this Agreement.
The Master Servicer may, but is not required to, make available each
month, to Certificateholders, Certificate Owners (that have been confirmed as
such by the Trustee), the Controlling Class Representative, the Underwriters,
the Rating Agencies or any party hereto, the Certificateholder Reports, on its
internet website. The Master Servicer will make no representations or warranties
as to the accuracy or completeness of any report not prepared by it and will
assume no responsibility for any information for which it is not the original
source.
The Master Servicer's internet website shall initially be located at
"xxx.xxxxxxxx.xxx" or at such other address as shall be specified by the Master
Servicer from time to time in one or more written notices delivered to the other
parties hereto, the Controlling Class Representative (if any), the
Certificateholders and the Rating Agencies. In connection with providing access
to the Master Servicer's internet website, the Master Servicer may require
registration, issuance and use of a password and username, execution of an
access agreement and acceptance of a disclaimer. The Master Servicer shall not
be liable for the dissemination of information to Certificateholders and
Certificate Owners in accordance with this Agreement. Access to the Master
Servicer's internet website shall be coordinated with the Trustee and shall be
with the use of a password provided by the Master Servicer, which, in the case
of a Certificateholder or a Certificate Owner, shall only be provided upon
receipt by the Master Servicer from such Person of a certification substantially
in the form of Exhibit L-1. Notwithstanding the foregoing, upon the Depositor's
notifying the Master Servicer that the Non-Registered Certificates have been
sold by the Underwriters to unaffiliated third parties, the Master Servicer may
make the Servicer Reports available on its internet website without a password,
provided that, for so long as reports are required to be filed with the
Commission in respect of the Trust pursuant to Section 15(d) of
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the Exchange Act, the subject reports shall have been previously filed with the
Commission (which shall be confirmed by the Master Servicer by request made to
the Trustee).
(c) If the Master Servicer or the Special Servicer, as the case may
be, delivers a Supplemental Report to the Trustee, in accordance with the first
paragraph of Section 3.12(d), then the Trustee shall include the Supplemental
Report in or as an attachment to the Distribution Date Statement for the
following Distribution Date and, to the extent required by Section 8.15(a),
shall file such Supplemental Report, together with such Distribution Date
Statement, on the related Current Report on Form 8-K and/or the related Annual
Report on Form 10-K, as applicable, in accordance with Section 8.15(a). In
addition, during any fiscal year of the Trust until the Trustee provides written
notice that it has filed a Form 15 with respect to the Trust as to that fiscal
year in accordance with Section 8.15(c), in the event the Master Servicer or the
Special Servicer (with respect to the Special Servicer, solely with respect to
Specially Serviced Mortgage Loans and Administered REO Properties and any
material impairment to any such Mortgage Loan or REO Property) delivers a
Supplemental Report, in accordance with the second paragraph of Section 3.12(d),
regarding the occurrence of any event specified under Section 8.15(b), the
Trustee shall file such information on a Current Report on Form 8-K in
accordance with Section 8.15(a).
During any period that reports are required to be filed with the
Commission with respect to the Trust pursuant to Section 15(d) of the Exchange
Act, each recipient of a Certificateholder Report, a CMSA NOI Adjustment
Worksheet or a CMSA Operating Statement Analysis Report shall be deemed to have
agreed to keep confidential the information therein until such statement or
report is filed with the Commission, and each Certificateholder Report, CMSA NOI
Adjustment Worksheet and CMSA Operating Statement Analysis Report shall bear a
legend to the effect that: "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."
(d) Absent manifest error of which it has actual knowledge, none of
the Master Servicer, the Special Servicer or the Trustee shall be responsible
for the accuracy or completeness of any information supplied to it by a
Mortgagor, a Mortgage Loan Seller or third party that is included in any
reports, statements, materials or information prepared or provided by the Master
Servicer, the Special Servicer or the Trustee, as applicable, pursuant to this
Agreement. None of the Trustee, the Master Servicer or the Special Servicer
shall have any obligation to verify the accuracy or completeness of any
information provided by a Mortgagor, a Mortgage Loan Seller, a third party or
each other. The Master Servicer may conclusively rely on any information
provided by the respective Mortgage Loan Sellers or any Mortgagor with respect
to the CMSA Loan Periodic Update File, CMSA Loan Setup File, CMSA Property File
and CMSA Financial File.
(e) Within a reasonable period of time after the end of each calendar
year, upon request, the Trustee shall send to each Person who at any time during
the calendar year was a Certificateholder of record, a report summarizing on an
annual basis (if appropriate) the items relating to distributions of interest
(including any Prepayment Consideration and Additional Interest) and principal
to such Certificateholder during such calendar year (or the applicable portion
of such calendar year during which such Person was a Certificateholder) set
forth in the Distribution Date Statements and such
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other information as may be required to enable such Certificateholder to prepare
its federal income tax returns. Such information shall include the amount of
original issue discount accrued on each Class of Certificates and information
regarding the expenses of the Trust Fund. Such requirement shall be deemed to be
satisfied to the extent such information is provided pursuant to applicable
requirements of the Code from time to time in force.
(f) Upon receipt of notice from the Depositor that the Underwriters
have sold the Non-Registered Certificates to unaffiliated third parties, the
Trustee shall make available electronically or, if so requested, forward by hard
copy, on each Distribution Date, to (i) Trepp, LLC (at 000 Xxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other address as Trepp, LLC may
designate), (ii) Intex Solutions, Inc. (at 000 X Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx
00000, or such other address as Intex Solutions, Inc. may hereafter designate),
(iii) Charter Research Corporation (at Two Xxxxxx Street, 00xx Xxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000-0000, or such other address as Charter Research Corporation
may hereafter designate), and (iv) any other similar third party information
provider designated by the Depositor, a copy of the reports made available to
the Holders of the Certificates on such Distribution Date as described above.
(g) Upon written request of the Depositor or any Underwriter, without
payment of any fee, and upon written request of any Certificateholder or any
other Person, together with payment of a reasonable fee specified by the
Trustee, the Trustee shall provide any statements, reports and/or information
contemplated by this Section 4.02 electronically to such party (such electronic
distribution and such statements, reports, and/or information thereon to bear
such appropriate disclaimers and qualifications as the Depositor and the Trustee
shall determine in their reasonable discretion).
If any Certificate Owner does not receive through the Depository or
any of its Depository Participants any of the statements, reports and/or other
written information described above in this Section 4.02 that it would otherwise
be entitled to receive if it were the Holder of a Definitive Certificate
evidencing its ownership interest in the related Class of Book-Entry
Certificates, then the Trustee shall forward such statements, reports and/or
other written information to such Certificate Owner as provided above, upon the
request of such Certificate Owner made in writing to the Corporate Trust Office
(accompanied by current verification of such Certificate Owner's ownership
interest). Such portion of such information as may be agreed upon by the
Depositor and the Trustee shall be furnished to any such Person via overnight
courier delivery or telecopy from the Trustee; provided that the cost of such
overnight courier delivery or telecopy shall be an expense of the party
requesting such information.
(h) The Trustee shall only be obligated to deliver the statements,
reports and information contemplated by this Section 4.02 to the extent it
receives, in the format required by this Agreement, the necessary underlying
information from the Master Servicer or the Special Servicer, as applicable, and
shall not be liable for any failure to deliver any thereof on the prescribed due
dates, to the extent caused by failure to receive timely such underlying
information. Nothing herein shall obligate the Trustee, the Master Servicer or
the Special Servicer to violate any applicable law prohibiting disclosure of
information with respect to any Mortgagor and the failure of the Trustee, Master
Servicer or the Special Servicer to disseminate information for such reason
shall not be a breach hereof.
(i) The information to be furnished by the Trustee to the
Certificateholders pursuant to this Section 4.02 shall not limit the Trustee in
furnishing any such information to other Persons to whom it determines such
disclosure to be appropriate and shall not limit the Trustee in furnishing to
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Certificateholders or to any Person any other information with respect to the
Trust Mortgage Loans, the Mortgaged Properties or the Trust Fund as may be
provided to it by the Depositor, the Master Servicer or the Special Servicer or
gathered by it in any investigation or other manner from time to time (such
information, other than as described in this Section 4.02, is referred to herein
as "Additional Information") as it may reasonably deem necessary or appropriate
from time to time, provided that (A) the Trustee shall give the Depositor three
(3) Business Days' advance notice before doing so, (B) any such Additional
Information shall only be furnished with the consent or at the request of the
Depositor (except pursuant to clause (E) below), (C) the Trustee shall be
entitled to indicate the source of all information furnished by it, and the
Trustee may affix thereto any disclaimer it deems appropriate in its reasonable
discretion, (D) the Trustee shall notify Certificateholders of the availability
of any such information in any manner as it, in its sole discretion, may
determine, and (E) this provision shall not prevent the Trustee, whether with or
without the consent of the Depositor, from furnishing information with respect
to the Trust Fund and its administration thereof to any Person, if it reasonably
determines that the furnishing of such information is required by applicable
law. The Trustee shall forward to the Depositor any requests for Additional
Information which, for their fulfillment, require the consent of the Depositor.
Nothing herein shall be construed to impose upon the Trustee any obligation or
duty to furnish or distribute any Additional Information to any Person in any
instance.
SECTION 4.03. P&I Advances With Respect to the Mortgage Pool.
(a) On or before 2:00 p.m., New York City time, on each Trust Master
Servicer Remittance Date, the Master Servicer shall, subject to Section 4.03(c)
below, satisfy its obligations to make any required P&I Advances with respect to
the related Distribution Date in respect of the Mortgage Pool, first, by
transferring to the Trustee for deposit in the Collection Account amounts then
held in the Pool Custodial Account for future distribution to Certificateholders
in subsequent months in discharge of such obligations, and second, by remitting
its own funds to the Trustee for deposit in the Collection Account in an amount
equal to the remaining portion of such required P&I Advances. Any amounts held
in the Pool Custodial Account for future distribution and so used to make P&I
Advances shall be appropriately reflected in the Master Servicer's records and
replaced by the Master Servicer by deposit in the Pool Custodial Account on or
before the next succeeding applicable Determination Date (to the extent not
previously replaced through the deposit of Late Collections of the delinquent
principal and interest in respect of which such P&I Advances were made). If, as
of 4:00 p.m., New York City time, on any Trust Master Servicer Remittance Date,
the Master Servicer shall not have made any P&I Advance required to be made on
such date pursuant to this Section 4.03(a) (and shall not have delivered to the
Trustee the requisite Officer's Certificate and any required supporting
documentation related to a determination of nonrecoverability of a P&I Advance),
then the Trustee shall provide notice of such failure to a Servicing Officer of
the Master Servicer by facsimile transmission sent to telecopy no. (704)
715-0036 (or such alternative number provided by the Master Servicer to the
Trustee in writing) and by telephone at telephone no. (000) 000-0000 or (704)
593-7867 (or such alternative number provided by the Master Servicer to the
Trustee in writing) as soon as possible, but in any event before 5:00 p.m., New
York City time, on such Trust Master Servicer Remittance Date. If after such
notice by facsimile, the Trustee does not receive the full amount of such P&I
Advances by 10:00 a.m., New York City time, on the related Distribution Date,
then the Trustee (or the Fiscal Agent on its behalf) shall make the portion of
such P&I Advances that was required to be, but was not, made by the Master
Servicer on such Trust Master Servicer Remittance Date. If the Trustee fails to
make any such P&I Advance on the related Distribution Date, but the Fiscal Agent
makes such P&I Advance on such date, then the Trustee shall be deemed not to be
in default hereunder.
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No party hereto shall be required to make a P&I Advance with respect
to any Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect
thereto.
(b) The aggregate amount of P&I Advances to be made by the Master
Servicer, the Trustee or the Fiscal Agent, as the case may be, pursuant to this
Section 4.03 in respect of any Distribution Date shall, subject to Section
4.03(c) below, equal the aggregate of all Monthly Payments (other than Balloon
Payments) and any Assumed Monthly Payments, in each case net of related Master
Servicing Fees and Workout Fees (and, in the case of each Outside Serviced Trust
Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto,
further net of any related similar fees payable to third parties with respect to
the subject Outside Serviced Trust Mortgage Loan or any successor REO Trust
Mortgage Loan with respect thereto pursuant to the related Outside Servicing
Agreement) due or deemed due, as the case may be, in respect of the Trust
Mortgage Loans (including Balloon Trust Mortgage Loans delinquent as to their
respective Balloon Payments) and any REO Trust Mortgage Loans in the Mortgage
Pool on their respective Due Dates during the calendar month in which the
subject Distribution Date occurs, in each case to the extent such amount was not
Received by the Trust (including as net income from any related REO Property) as
of the end of the related Collection Period; provided that--
(i) if it is determined by the applicable Outside Servicer and
reported to the applicable parties hereunder that an Appraisal Reduction
Amount exists with respect to any Outside Serviced Loan Combination, and a
portion of such Appraisal Reduction Amount is allocable to the Trust
Mortgage Loan or any successor REO Trust Mortgage Loan with respect
thereto, as applicable, that is part of such Outside Serviced Loan
Combination, then the interest portion of each P&I Advance, if any,
required to be made pursuant to this Section 4.03 with respect to such
Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect
thereto, as the case may be, during the period that such Appraisal
Reduction Amount continues to exist, shall be reduced to equal the product
of (A) the amount of the interest portion of the subject P&I Advance that
would otherwise be required to be made under this Section 4.03 with respect
to such Trust Mortgage Loan or any successor REO Trust Mortgage Lo