EXHIBIT 4
---------
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.,
Depositor
GMAC COMMERCIAL MORTGAGE CORPORATION,
Master Servicer
CWCAPITAL ASSET MANAGEMENT LLC,
Special Servicer
XXXXX FARGO BANK, N.A.,
Trustee
and
LASALLE BANK NATIONAL ASSOCIATION,
Paying Agent
POOLING AND SERVICING AGREEMENT
Dated as of
August 1, 2005
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 2005-LDP3
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms....................................................
Section 1.02 Certain Calculations.............................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.....................................
Section 2.02 Acceptance by Trustee............................................
Section 2.03 Representations, Warranties and Covenants of the
Depositor; Mortgage Loan Sellers' Repurchase or
Substitution of Mortgage Loans for Defects in Mortgage
Files and Breaches of Representations and Warranties............
Section 2.04 Execution of Certificates; Issuance of Uncertificated
Lower-Tier Interests............................................
Section 2.05 Grantor Trust Designations.......................................
ARTICLE III
ADMINISTRATION AND
SERVICING OF THE TRUST FUND
Section 3.01 Master Servicer to Act as Master Servicer; Special
Servicer to Act as Special Servicer; Administration of
the Mortgage Loans..............................................
Section 3.02 Collection of Mortgage Loan Payments.............................
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts..............................................
Section 3.04 The Certificate Account, the Lower-Tier and Upper-Tier
Distribution Accounts, the Companion Distribution
Account, the Interest Reserve Account, the Gain-on-Sale
Reserve Account and the Excess Interest Distribution
Account.........................................................
Section 3.05 Permitted Withdrawals from the Certificate Account, the
Distribution Accounts, the Companion Distribution
Account and the Excess Interest Distribution Account............
Section 3.06 Investment of Funds in the Certificate Account and the
REO Account.....................................................
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage...........................................
Section 3.08 Enforcement of Due-on-Sale Clauses; Assumption Agreements........
Section 3.09 Realization Upon Defaulted Mortgage Loans........................
Section 3.10 Trustee to Cooperate; Release of Mortgage Files..................
Section 3.11 Servicing Compensation...........................................
Section 3.12 Inspections; Collection of Financial Statements..................
Section 3.13 Annual Statement as to Compliance................................
Section 3.14 Reports by Independent Public Accountants........................
Section 3.15 Access to Certain Information....................................
Section 3.16 Title to REO Property; REO Account...............................
Section 3.17 Management of REO Property.......................................
Section 3.18 Sale of Defaulted Mortgage Loans and REO Properties..............
Section 3.19 Additional Obligations of Master Servicer and Special
Servicer........................................................
Section 3.20 Modifications, Waivers, Amendments and Consents..................
Section 3.21 Transfer of Servicing Between Master Servicer and Special
Servicer; Recordkeeping; Asset Status Report....................
Section 3.22 Sub-Servicing Agreements.........................................
Section 3.23 Representations, Warranties and Covenants of the Master
Servicer........................................................
Section 3.24 Representations, Warranties and Covenants of the Special
Servicer........................................................
Section 3.25 Interest Reserve Account.........................................
Section 3.26 Excess Interest Distribution Account.............................
Section 3.27 Directing Certificateholder Contact with Master Servicer.........
Section 3.28 Controlling Class Certificateholders and Directing
Certificateholder; Certain Rights and Powers of
Directing Certificateholder.....................................
Section 3.29 Intercreditor Agreements.........................................
Section 3.30 Companion Paying Agent...........................................
Section 3.31 Companion Register...............................................
Section 3.32 Certain Matters Relating to the Universal Hotel Portfolio
Mortgage Loan...................................................
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions....................................................
Section 4.02 Statements to Certificateholders; CMSA Investor Reporting
Package (IRP)s; Grant of Power of Attorney......................
Section 4.03 P&I Advances.....................................................
Section 4.04 Allocation of Collateral Support Deficit.........................
Section 4.05 Appraisal Reductions.............................................
Section 4.06 Certificate Deferred Interest....................................
Section 4.07 Grantor Trust Reporting..........................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.................................................
Section 5.02 Registration of Transfer and Exchange of Certificates............
Section 5.03 Book-Entry Certificates..........................................
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates................
Section 5.05 Persons Deemed Owners............................................
Section 5.06 Certificate Ownership Certification..............................
Section 5.07 Appointment of Paying Agent......................................
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER,
THE SPECIAL SERVICER AND
THE DIRECTING CERTIFICATEHOLDER
Section 6.01 Liability of the Depositor, the Master Servicer and the
Special Servicer................................................
Section 6.02 Merger, Consolidation or Conversion of the Depositor, the
Master Servicer or the Special Servicer.........................
Section 6.03 Limitation on Liability of the Depositor, the Master
Servicer, the Special Servicer and Others.......................
Section 6.04 Depositor, Master Servicer and Special Servicer Not to
Resign..........................................................
Section 6.05 Rights of the Depositor in Respect of the Master Servicer
and the Special Servicer........................................
Section 6.06 The Master Servicer and the Special Servicer as
Certificate Owner...............................................
Section 6.07 The Directing Certificateholder..................................
ARTICLE VII
DEFAULT
Section 7.01 Events of Default; Master Servicer and Special Servicer
Termination.....................................................
Section 7.02 Trustee to Act; Appointment of Successor.........................
Section 7.03 Notification to Certificateholders...............................
Section 7.04 Waiver of Events of Default......................................
Section 7.05 Trustee as Maker of Advances.....................................
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE PAYING AGENT
Section 8.01 Duties of the Trustee and the Paying Agent.......................
Section 8.02 Certain Matters Affecting the Trustee and the Paying Agent.......
Section 8.03 Trustee and Paying Agent Not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans...................
Section 8.04 Trustee or Paying Agent May Own Certificates.....................
Section 8.05 Fees and Expenses of Trustee and Paying Agent;
Indemnification of Trustee and Paying Agent.....................
Section 8.06 Eligibility Requirements for Trustee and the Paying Agent........
Section 8.07 Resignation and Removal of the Trustee and Paying Agent..........
Section 8.08 Successor Trustee or Paying Agent................................
Section 8.09 Merger or Consolidation of Trustee or Paying Agent...............
Section 8.10 Appointment of Co-Trustee or Separate Trustee....................
Section 8.11 Appointment of Custodians........................................
Section 8.12 Access to Certain Information....................................
Section 8.13 Representations and Warranties of the Trustee....................
Section 8.14 Representations and Warranties of the Paying Agent...............
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Repurchase or Liquidation of All
Mortgage Loans..................................................
Section 9.02 Additional Termination Requirements..............................
ARTICLE X
ADDITIONAL REMIC PROVISIONS
Section 10.01 REMIC Administration.............................................
Section 10.02 Use of Agents....................................................
Section 10.03 Depositor, Master Servicer and Special Servicer to
Cooperate with Paying Agent.....................................
Section 10.04 Appointment of REMIC Administrators..............................
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment........................................................
Section 11.02 Recordation of Agreement; Counterparts...........................
Section 11.03 Limitation on Rights of Certificateholders.......................
Section 11.04 Governing Law....................................................
Section 11.05 Notices..........................................................
Section 11.06 Severability of Provisions.......................................
Section 11.07 Grant of a Security Interest.....................................
Section 11.08 Successors and Assigns; Third Party Beneficiaries................
Section 11.09 Article and Section Headings.....................................
Section 11.10 Notices to the Rating Agencies...................................
EXHIBITS
Exhibit A-1 Form of Class A-1 Certificate
Exhibit A-2 Form of Class A-2 Certificate
Exhibit A-3 Form of Class A-3 Certificate
Exhibit A-4 Form of Class A-4A Certificate
Exhibit A-5 Form of Class A-4B Certificate
Exhibit A-6 Form of Class A-SB Certificate
Exhibit A-7 Form of Class A-1A Certificate
Exhibit A-8 Form of Class X-1 Certificate
Exhibit A-9 Form of Class X-2 Certificate
Exhibit A-10 Form of Class A-J Certificate
Exhibit A-11 Form of Class B Certificate
Exhibit A-12 Form of Class C Certificate
Exhibit A-13 Form of Class D Certificate
Exhibit A-14 Form of Class E Certificate
Exhibit A-15 Form of Class F Certificate
Exhibit A-16 Form of Class G Certificate
Exhibit A-17 Form of Class H Certificate
Exhibit A-18 Form of Class J Certificate
Exhibit A-19 Form of Class K Certificate
Exhibit A-20 Form of Class L Certificate
Exhibit A-21 Form of Class M Certificate
Exhibit A-22 Form of Class N Certificate
Exhibit A-23 Form of Class O Certificate
Exhibit A-24 Form of Class NR Certificate
Exhibit A-25 Form of Class S Certificate
Exhibit A-26 Form of Class R Certificate
Exhibit A-27 Form of Class LR Certificate
Exhibit B Mortgage Loan Schedule
Exhibit C Form of Investment Representation Letter
Exhibit D-1 Form of Transfer Affidavit
Exhibit D-2 Form of Transferor Letter
Exhibit E Form of Request for Release
Exhibit F Form of ERISA Representation Letter
Exhibit G Form of Statement to Certificateholders
Exhibit H Form of Omnibus Assignment
Exhibit I-1 Form of Regulation S Transfer Certificate during Restricted
Period
Exhibit I-2 Form of Regulation S Transfer Certificate after Restricted
Period
Exhibit J Form of Purchase Option Notice
Exhibit K Form of Transfer Certificate for Rule 144A Book-Entry
Certificate to Regulation S Book-Entry Certificate during
Restricted Period
Exhibit L [Reserved]
Exhibit M [Reserved]
Exhibit N Form of Transfer Certificate for Rule 144A Book-Entry
Certificate to Regulation S Book-Entry Certificate after
Restricted Period
Exhibit O Form of Transfer Certificate of Regulation S Book-Entry
Certificate to Rule 144A Global Book-Entry Certificate
during Restricted Period
Exhibit P Form of Transfer Certificate for Regulation S Book-Entry
Certificate during Restricted Period
Exhibit Q Form Certification to be Provided with Form 10-K
Exhibit R Form of Notice Relating to the Universal Hotel Portfolio
Mortgage Loan
Exhibit S-1 Form of Certification to be Provided to Depositor by Paying
Agent
Exhibit S-2 Form of Certification to be Provided to Depositor by Master
Servicer
Exhibit S-3 Form of Certification to be Provided to Depositor by
Special Servicer
Exhibit T Initial Companion Holders
Exhibit U Form of Notice and Certification Regarding Defeasance of
Mortgage Loan
Exhibit V Information Request from Certificateholder, Beneficial
Owner or Prospective Purchaser
Exhibit W Trustee Certification/Exception Report
Exhibit X Realized Loss Report Form
SCHEDULES
Schedule 1 Mortgage Loans Containing Additional Debt
Schedule 2 Mortgage Loans that Initially Pay Interest Only
Schedule 3 Class X Reference Rate Schedule
Schedule 4 Class A-SB Planned Principal Balance Schedule
This Pooling and Servicing Agreement (the "Agreement") is dated
and effective as of August 1, 2005, among X.X. Xxxxxx Xxxxx Commercial
Mortgage Securities Corp., as Depositor, GMAC Commercial Mortgage
Corporation, as Master Servicer, CWCapital Asset Management LLC, as Special
Servicer, Xxxxx Fargo Bank, N.A., as Trustee, and LaSalle Bank National
Association, as Paying Agent.
PRELIMINARY STATEMENT:
The Depositor intends to sell commercial mortgage pass-through
certificates (collectively, the "Certificates"), to be issued hereunder in
multiple classes (each, a "Class"), which in the aggregate will evidence the
entire beneficial ownership interest in the trust fund (the "Trust Fund") to be
created hereunder, the primary assets of which will be a pool of commercial,
multifamily and manufactured housing community mortgage loans (the "Mortgage
Loans"). As provided herein, the Paying Agent shall elect or shall cause an
election to be made to treat the Trust Fund (exclusive of the Excess Interest,
the Excess Interest Distribution Account and the proceeds thereof) for federal
income tax purposes as two separate real estate mortgage investment conduits
(the "Upper-Tier REMIC" and the "Lower-Tier REMIC" as described herein).
The parties intend that the portions of the Trust Fund representing
the Excess Interest, the Excess Interest Distribution Account and the proceeds
thereof will be treated as a grantor trust under subpart E of Part I of
subchapter J of the Code and that the beneficial interests therein will be
represented by the Class S Certificates.
LOWER-TIER REMIC
The Class LA-1-1, Class LA-1-2, Class LA-1-3, Class LA-1-4, Class
LA-1A-1, Class LA-1A-2, Class LA-1A-3, Class LA-1A-4, Class LA-1A-5, Class
LA-1A-6, Class LA-1A-7, Class LA-1A-8, Class LA-1A-9, Class LA-1A-10, Class
LA-1A-11, Class LA-1A-12, Class LA-1A-13, Class LA-1A-14, Class LA-1A-15, Class
LA-2-1, Class LA-2-2, Class LA-2-3, Class LA-2-4, Class LA-3-1, Class LA-3-2,
Class LA-3-3, Class LA-3-4, Class LA-3-5, Class LA-3-6, Class LA-3-7, Class
LA-4A-1, Class LA-4A-2, Class LA-4A-3, Class XX-0X, Xxxxx XX-XX-0, Class
LA-SB-2, Class LA-SB-3, Class LA-SB-4, Class LA-SB-5, Class LA-SB-6, Class LA-J,
Class LB, Class LC, Class LD-1, Class LD-2, Class LD-3, Class LD-4, Class LE-1,
Class LE-2, Class LF-1, Class LF-2, Class LF-3, Class LG-1, Class LG-2, Class
LH-1, Class LH-2, Class LH-3, Class LJ, Class LK-1, Class LK-2, Class LL, Class
LM, Class LN, Class LO and Class LNR Uncertificated Interests will evidence
"regular interests" in the Lower-Tier REMIC created hereunder. The sole Class of
"residual interests" in the Lower-Tier REMIC will be evidenced by the Class LR
Certificates.
The following table sets forth the Original Lower-Tier Principal
Amounts and per annum rates of interest for the Uncertificated Lower-Tier
Interests and the Class LR Certificates:
Original
Lower-Tier
Class Designation Interest Rate Principal Amount
-------------------- --------------- ----------------
Class LA-1-1 (1) $ 3,600,000
Class LA-1-2 (1) $ 4,957,000
Class LA-1-3 (1) $ 33,511,000
Class LA-1-4 (1) $ 20,866,000
Class LA-1A-1 (1) $ 953,000
Class LA-1A-2 (1) $ 1,238,000
Class LA-1A-3 (1) $ 6,379,000
Class LA-1A-4 (1) $ 7,308,000
Class LA-1A-5 (1) $ 7,174,000
Class LA-1A-6 (1) $ 19,114,000
Class LA-1A-7 (1) $ 7,025,000
Class LA-1A-8 (1) $ 9,243,000
Class LA-1A-9 (1) $ 6,411,000
Class LA-1A-10 (1) $ 27,301,000
Class LA-1A-11 (1) $ 5,640,000
Class LA-1A-12 (1) $ 5,570,000
Class LA-1A-13 (1) $ 5,329,000
Class LA-1A-14 (1) $ 8,765,000
Class LA-1A-15 (1) $ 200,275,000
Class LA-2-1 (1) $ 29,488,000
Class LA-2-2 (1) $ 52,995,000
Class LA-2-3 (1) $ 62,314,000
Class LA-2-4 (1) $ 94,176,000
Class LA-3-1 (1) $ 9,613,000
Class LA-3-2 (1) $ 34,654,000
Class LA-3-3 (1) $ 31,895,000
Class LA-3-4 (1) $ 154,557,000
Class LA-3-5 (1) $ 19,729,000
Class LA-3-6 (1) $ 17,363,000
Class LA-3-7 (1) $ 1,785,000
Class LA-4A-1 (1) $ 163,101,000
Class LA-4A-2 (1) $ 12,976,000
Class LA-4A-3 (1) $ 370,174,000
Class LA-4B (1) $ 78,036,000
Class LA-SB-1 (1) $ 2,919,000
Class LA-SB-2 (1) $ 10,466,000
Class LA-SB-3 (1) $ 11,425,000
Class LA-SB-4 (1) $ 11,193,000
Class LA-SB-5 (1) $ 11,744,000
Class LA-SB-6 (1) $ 56,904,000
Class LA-J (1) $ 151,703,000
Class LB (1) $ 37,925,000
Class LC (1) $ 17,699,000
Class LD-1 (1) $ 5,928,000
Class LD-2 (1) $ 11,668,000
Class LD-3 (1) $ 11,139,000
Class LD-4 (1) $ 9,191,000
Class LE-1 (1) $ 11,186,000
Class LE-2 (1) $ 6,513,000
Class LF-1 (1) $ 11,329,000
Class LF-2 (1) $ 14,707,000
Class LF-3 (1) $ 1,776,000
Class LG-1 (1) $ 16,005,000
Class LG-2 (1) $ 4,222,000
Class LH-1 (1) $ 6,553,000
Class LH-2 (1) $ 17,707,000
Class LH-3 (1) $ 1,024,000
Class LJ (1) $ 10,113,000
Class LK-1 (1) $ 8,213,000
Class LK-2 (1) $ 1,901,000
Class LL (1) $ 7,585,000
Class LM (1) $ 2,528,000
Class LN (1) $ 7,586,000
Class LO (1) $ 5,056,000
Class LNR (1) $ 25,284,616
Class LR None(2) None(2)
------------
(1) The interest rate for such Class of Uncertificated Lower-Tier Interests
shall be the Weighted Average Net Mortgage Rate.
(2) The Class LR Certificates do not have a Certificate Balance or Notional
Amount, do not bear interest and will not be entitled to distributions of
Yield Maintenance Charges. Any Available Distribution Amount remaining in
the Lower-Tier Distribution Account after distributing the Lower-Tier
Regular Distribution Amount shall be distributed to the Holders of the
Class LR Certificates (but only to the extent of the Available
Distribution Amount for such Distribution Date, if any, remaining in the
Lower-Tier Distribution Account).
UPPER-TIER REMIC
The Class A-1, Class A-2, Class X-0, Xxxxx X-0X, Xxxxx X-0X, Class
A-SB, Class A-1A, Class X-1, Class X-2, Class A-J, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O and the Class NR Certificates will evidence "regular interests" in the
Upper-Tier REMIC created hereunder. The sole Class of "residual interests" in
the Upper-Tier REMIC created hereunder will be evidenced by the Class R
Certificates.
The following table sets forth the designation, the pass-through
rate (the "Pass-Through Rate"), the aggregate initial principal amount (the
"Original Certificate Balance") or Notional Amount ("Original Notional Amount"),
as applicable, and the initial ratings given each Class by the Rating Agencies
for each Class of Certificates comprising the interests in the Upper-Tier REMIC
created hereunder:
Initial Original Certificate
Pass-Through Balance or Notional Ratings(1)
Rate Amount (Xxxxx'x/S&P)
---------------- -------------------- ------------------
Class A-1 Certificates(2) 4.6550% $ 62,934,000 Aaa/AAA
Class A-2 Certificates(2) 4.8510% $ 238,973,000 Aaa/AAA
Class A-3 Certificates(2) 4.9590% $ 269,596,000 Aaa/AAA
Class A-4A Certificates(2) 4.9360%(3) $ 546,251,000 Aaa/AAA
Class A-4B Certificates 4.9960%(3) $ 78,036,000 Aaa/AAA
Class A-SB Certificates(2) 4.8930%(3) $ 104,651,000 Aaa/AAA
Class A-1A Certificates(2) 4.9380%(3) $ 317,725,000 Aaa/AAA
Class A-J Certificates 5.1078%(4) $ 151,703,000 Aaa/AAA
Class B Certificates 5.1868%(5) $ 37,925,000 Aa2/AA
Class C Certificates 5.2058%(6) $ 17,699,000 Aa3/AA-
Class D Certificates 5.3048%(7) $ 37,926,000 A2/A
Class E Certificates 5.3138%(8) $ 17,699,000 A3/A-
Class F Certificates 5.3138%(8) $ 27,812,000 Baa1/BBB+
Class G Certificates 5.3138%(8) $ 20,227,000 Baa2/BBB
Class H Certificates 5.3138%(8) $ 25,284,000 Baa3/BBB-
Class J Certificates 4.7110%(3) $ 10,113,000 Ba1/BB+
Class K Certificates 4.7110%(3) $ 10,114,000 Ba2/BB
Class L Certificates 4.7110%(3) $ 7,585,000 Ba3/BB-
Class M Certificates 4.7110%(3) $ 2,528,000 B1/B+
Class N Certificates 4.7110%(3) $ 7,586,000 B2/B
Class O Certificates 4.7110%(3) $ 5,056,000 B3/B-
Class NR Certificates 4.7110%(3) $ 25,284,616 */*
Class R Certificates N/A(9) $N/A */*
Class X-1 Certificates 0.0403%(10) $2,022,707,616(11) Aaa/AAA
Class X-2 Certificates 0.3233%(10) $1,980,228,000(11) Aaa/AAA
------------
(1) The Certificates marked with an asterisk have not been rated by the
applicable Rating Agency.
(2) For purposes of making distributions to the Class X-0, Xxxxx X-0, Class
A-3, Class A-4A, Class A-4B, Class A-SB and Class A-1A Certificates, the
pool of Mortgage Loans will be deemed to consist of two distinct Loan
Groups, Loan Group 1 and Loan Group 2.
(3) Subject to a maximum Pass-Through Rate equal to the Weighted Average Net
Mortgage Rate.
(4) The Pass-Through Rate for any Distribution Date for the Class A-J
Certificates will be a per annum rate equal to the Weighted Average Net
Mortgage Rate for the Distribution Date minus 0.2060%.
(5) The Pass-Through Rate for any Distribution Date for the Class B
Certificates will be a per annum rate equal to the Weighted Average Net
Mortgage Rate for the Distribution Date minus 0.1270%.
(6) The Pass-Through Rate for any Distribution Date for the Class C
Certificates will be a per annum rate equal to the Weighted Average Net
Mortgage Rate for the Distribution Date minus 0.1080%.
(7) The Pass-Through Rate for any Distribution Date for the Class D
Certificates will be a per annum rate equal to the Weighted Average Net
Mortgage Rate for the Distribution Date minus 0.0090%.
(8) The Pass-Through Rate for any Distribution Date for the Class E, Class F,
Class G and Class H Certificates will be the Weighted Average Net Mortgage
Rate.
(9) The Class R Certificates do not have a Certificate Balance or Notional
Amount, do not bear interest and will not be entitled to distributions of
Yield Maintenance Charges. Any Available Distribution Amount remaining in
the Upper Tier Distribution Account, after all required distributions
under this Agreement have been made to each other Class of Certificates,
will be distributed to the Holders of the Class R Certificates.
(10) The pass-through rate on the Class X-1 and Class X-2 certificates will be
based on the weighted average interest strip rates of the respective
components of the Class X-1 and Class X-2 certificates. See "Description
of the Certificates--Distributions" in this prospectus supplement.
(11) The Class X-1 and Class X-2 Certificates will not have a Certificate
Balance; rather, each such Class of Certificates will accrue interest as
provided herein on the related Class X-1 Notional Amount and Class X-2
Notional Amount, as applicable.
As of the close of business on the Cut-off Date, the Mortgage Loans
had an aggregate principal balance, after application of all payments of
principal due on or before such date, whether or not received, equal to
$2,022,707,616.
The Universal Hotel Portfolio Companion Notes, the Lowe's Aliso
Viejo Companion Loan and the 0000 Xxxxxxxx Xxxxxxxxx Companion Loan
(collectively, the "Companion Loans"), are not part of the Trust Fund, but are
secured by the same Mortgage that secures the related Mortgage Loan (each an "AB
Mortgage Loan" and, collectively, the "AB Mortgage Loans") that is part of the
Trust Fund. As and to the extent provided herein, the Companion Loans will be
serviced and administered in accordance with this Agreement. Amounts
attributable to the Companion Loans will not be assets of the Trust Fund, and
(except to the extent that such amounts are payable or reimbursable to any party
to this Agreement) will be owned by the related Companion Holders.
The Universal Hotel Portfolio Mortgage Loan and the Universal Hotel
Portfolio Senior Notes are pari passu with each other and the Universal Hotel
Portfolio B Note is subordinated to such loans. The Universal Hotel Portfolio
Mortgage Loan is part of the Trust Fund. The Universal Hotel Portfolio A-1 Note,
Universal Hotel Portfolio A-2 Note, Universal Hotel Portfolio A-3 Note,
Universal Hotel Portfolio A-4 Note and the Universal Hotel Portfolio B Note are
part of the Universal Hotel Portfolio Trust. The Universal Hotel Portfolio A-5
Note is part of the trust serviced and administered by an Other Pooling and
Servicing Agreement. The Universal Hotel Portfolio Mortgage Loan and the
Universal Hotel Portfolio Companion Notes will be serviced and administered in
accordance with Universal Hotel Portfolio Pooling Agreement.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Paying
Agent agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. Whenever used in this Agreement,
including in the Preliminary Statement, the following capitalized terms, unless
the context otherwise requires, shall have the meanings specified in this
Article.
"1129 Northern Boulevard AB Mortgage Loan": That certain Mortgage
Loan identified on the Mortgage Loan Schedule as loan number 38.
"1129 Northern Boulevard Companion Loan": That certain loan
evidenced by a promissory B note, which is not an asset of the Trust Fund,
secured by the Mortgaged Property securing the 0000 Xxxxxxxx Xxxxxxxxx XX
Mortgage Loan.
"1129 Northern Boulevard Intercreditor Agreement": That certain
Intercreditor Agreement Among Noteholders, dated as of August [__], 2005, by and
between CBA-Mezzanine Capital Finance, LLC, as the B Note Holder, and JPMorgan
Chase Bank, N.A., as the A Note Holder.
"30/360 Mortgage Loans": The Mortgage Loans indicated as such in the
Mortgage Loan Schedule.
"AB Mortgage Loan": As defined in the recitals to this Agreement.
"Acceptable Insurance Default": With respect to any Mortgage Loan or
Loan Pair, other than the Universal Hotel Portfolio Mortgage Loan or a Mortgage
Loan or a Loan Pair that expressly requires the Mortgagor to maintain insurance
coverage for acts of terrorism, a default under the related Mortgage Loan
documents arising by reason of any failure on the part of the related Mortgagor
to maintain with respect to the related Mortgaged Property specific insurance
coverage with respect to, or an all-risk casualty insurance policy that does not
specifically exclude, terrorist or similar acts, and/or any failure on the part
of the related Mortgagor to maintain with respect to the related Mortgaged
Property insurance coverage with respect to terrorist or similar acts upon terms
not materially less favorable than those in place as of August 24, 2005, as to
which default the Master Servicer and the Special Servicer may forbear taking
any enforcement action, provided, that the Special Servicer has determined, in
its reasonable judgment, based on inquiry consistent with the Servicing
Standards and subject to the consent of the Directing Certificateholder, that
either (a) such insurance is not available at commercially reasonable rates and
that such hazards are not at the time commonly insured against for properties
similar to the related Mortgaged Property and located in or around the region in
which such related Mortgaged Property is located, or (b) such insurance is not
available at any rate; provided, however, the Directing Certificateholder will
not have more than 30 days to respond to the Special Servicer's request for
consent; provided further, that upon the Special Servicer's determination,
consistent with the Servicing Standards, that exigent circumstances do not allow
the Special Servicer to wait for the consent of the Directing Certificateholder,
the Special Servicer will not be required to do so. The Special Servicer shall
be entitled to rely on insurance consultants in making determinations described
above. The costs of such insurance consultants shall be paid from the
Certificate Account as a Servicing Advance to the extent the Mortgage Loan
documents do not prohibit such amounts from being collected from the related
Mortgagor and otherwise as an expense of the Trust Fund.
"Accrued Certificate Interest": With respect to each Distribution
Date and each Class of Regular Certificates, an amount equal to interest for the
related Interest Accrual Period at the Pass-Through Rate of such Class of
Certificates for such Distribution Date, accrued on the related Certificate
Balance (or with respect to the Class X-1 and Class X-2 Certificates, the
Notional Amount of such Class) outstanding immediately prior to such
Distribution Date (provided, that for interest accrual purposes any
distributions in reduction of Certificate Balance or Notional Amount or
reductions in Certificate Balance or Notional Amount as a result of allocations
of Collateral Support Deficit, as applicable, on the Distribution Date occurring
in an Interest Accrual Period shall be deemed to have been made on the first day
of such Interest Accrual Period). Accrued Certificate Interest shall be
calculated on the basis of a 360-day year consisting of twelve 30-day months.
"Act": The Securities Act of 1933, as it may be amended from time to
time.
"Actual/360 Mortgage Loans": The Mortgage Loans indicated as such in
the Mortgage Loan Schedule.
"Additional Debt": With respect to any Mortgage Loan, any debt owed
by the related Mortgagor to a party other than the lender under such Mortgage
Loan as of the Closing Date as set forth on Schedule 1 hereto, as increased or
decreased from time to time pursuant to the terms of the related subordinate
loan documents (including any subordination agreement).
"Additional Exclusions": Exclusions in addition to those customarily
found in the insurance policies for mortgaged properties similar to the
Mortgaged Properties on September 11, 2001.
"Administrative Cost Rate": With respect to each Mortgage Loan, the
sum of the Servicing Fee Rate and the Trustee Fee Rate, in each case computed on
the basis of the Stated Principal Balance of the related Mortgage Loan and in
the same manner as interest is calculated on such Mortgage Loan.
"Advance": Any P&I Advance or Servicing Advance.
"Adverse REMIC Event": As defined in Section 10.01(f).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent": As defined in Section 5.02(c)(i)(A).
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
"Anticipated Repayment Date": With respect to any Mortgage Loan that
is indicated on the Mortgage Loan Schedule as having a Revised Rate, the date
upon which such Mortgage Loan commences accruing interest at such Revised Rate.
"Applicable Procedures": As defined in Section 5.02(b)(i).
"Applicable State and Local Tax Law": For purposes hereof, the
Applicable State and Local Tax Law shall be (a) the tax laws of the State of New
York and the State of Minnesota and (b) such other state or local tax laws whose
applicability shall have been brought to the attention of the Trustee and the
Paying Agent by either (i) an Opinion of Counsel delivered to it, or (ii)
written notice from the appropriate taxing authority as to the applicability of
such state or local tax laws.
"Appraisal": An appraisal prepared by an Independent MAI appraiser
with at least five years experience in properties of like kind and in the same
area, prepared in accordance with 12 C.F.R. 225.64, or, in connection with an
Appraisal Reduction, a valuation meeting the requirements of clause (b)(i)(A)(2)
in the definition of Appraisal Reduction.
"Appraisal Reduction": For any Distribution Date and for any
Mortgage Loan (other than the Universal Hotel Portfolio Mortgage Loan) as to
which an Appraisal Reduction Event has occurred, will be an amount calculated by
the Master Servicer, based upon the appraised value determined by the Special
Servicer, in consultation with the Directing Certificateholder, as of the first
Determination Date that is at least 10 Business Days following the date on which
the Special Servicer receives and delivers to the Master Servicer the related
Appraisal, equal to the excess of (a) the Stated Principal Balance of such
Mortgage Loan and any related Companion Loan, over (b) the excess of (i) the sum
of (A) 90% of the Appraised Value of the related Mortgaged Property as
determined (1) by one or more Appraisals with respect to any Mortgage Loan
(together with any other Mortgage Loan cross-collateralized with such Mortgage
Loan) with an outstanding principal balance equal to or in excess of $2,000,000
(the costs of which shall be paid by the Master Servicer as a Servicing Advance)
or (2) by an internal valuation performed by the Special Servicer with respect
to any Mortgage Loan (together with any other Mortgage Loan cross-collateralized
with such Mortgage Loan) with an outstanding principal balance less than
$2,000,000 minus, with respect to any Appraisals, such downward adjustments as
the Special Servicer may make (without implying any obligation to do so) based
upon its review of the Appraisal and any other information it deems relevant,
and (B) all escrows, letters of credit and reserves in respect of such Mortgage
Loan as of the date of calculation over (ii) the sum of, as of the Due Date
occurring in the month of the date of determination, (A) to the extent not
previously advanced by the Master Servicer or the Trustee, all unpaid interest
due on such Mortgage Loan at a per annum rate equal to its Mortgage Rate (and
any accrued and unpaid interest on any related Companion Loan), (B) all
unreimbursed Advances and interest thereon at the Reimbursement Rate in respect
of such Mortgage Loan and (C) all currently due and unpaid real estate taxes,
assessments, insurance premiums, ground rents, unpaid Special Servicing Fees and
all other amounts due and unpaid with respect to such Mortgage Loan (which
taxes, premiums, ground rents and other amounts have not been the subject of an
Advance by the Master Servicer or the Trustee, as applicable); provided,
however, without limiting the Special Servicer's obligation to order and obtain
such Appraisal, if the Special Servicer has not obtained the Appraisal or
valuation, as applicable, referred to above within 60 days of the Appraisal
Reduction Event (or with respect to the Appraisal Reduction Events set forth in
clauses (i) and (vi) of the definition of Appraisal Reduction Event, within 120
days or 90 days, respectively, after the initial delinquency for the related
Appraisal Reduction Event), the amount of the Appraisal Reduction shall be
deemed to be an amount equal to 25% of the current Stated Principal Balance of
the related Mortgage Loan (or AB Mortgage Loan and its related Companion Loan in
the case of an AB Mortgage Loan) until such time as such appraisal or valuation
referred to above is received and the Appraisal Reduction is calculated. Within
60 days after the Appraisal Reduction Event, the Special Servicer shall order
and receive an Appraisal (the cost of which shall be paid by the Master Servicer
as a Servicing Advance); provided, however, that with respect to an Appraisal
Reduction Event as set forth in clause (i) of the definition of Appraisal
Reduction Event, the Special Servicer shall order and receive such Appraisal
within the 120-day period set forth in such clause (i), which Appraisal shall be
delivered by the Special Servicer to the Master Servicer, the Directing
Certificateholder, the Paying Agent and the Trustee.
With respect to each Mortgage Loan (other than the Universal Hotel
Portfolio Mortgage Loan) as to which an Appraisal Reduction has occurred (unless
such Mortgage Loan has become a Corrected Mortgage Loan (for such purposes
taking into account any amendment or modification of such Mortgage Loan)), the
Special Servicer shall, within thirty (30) days of each anniversary of the
related Appraisal Reduction Event, order an Appraisal (which may be an update of
a prior Appraisal), the cost of which shall be paid by the Master Servicer as a
Servicing Advance or conduct an internal valuation, as applicable. Based upon
such Appraisal or internal valuation of the Special Servicer, the Master
Servicer shall redetermine (in consultation with the Directing
Certificateholder) and report to the Directing Certificateholder, the Special
Servicer, the Paying Agent and the Trustee the amount of the Appraisal Reduction
with respect to such Mortgage Loan and Companion Loan, as applicable, and such
redetermined Appraisal Reduction shall replace the prior Appraisal Reduction
with respect to such Mortgage Loan and Companion Loan, as applicable. The
Directing Certificateholder shall have 10 Business Days to review each
calculation of an Appraisal Reduction. Notwithstanding the foregoing, the
Special Servicer will not be required to obtain an Appraisal or conduct an
internal valuation, as applicable, with respect to a Mortgage Loan which is the
subject of an Appraisal Reduction Event to the extent the Special Servicer has
obtained an Appraisal or valuation, as applicable, with respect to the related
Mortgaged Property within the twelve-month period immediately prior to the
occurrence of such Appraisal Reduction Event. Instead, the Special Servicer may
use such prior Appraisal or valuation, as applicable, in calculating any
Appraisal Reduction with respect to such Mortgage Loan; provided, that the
Special Servicer is not aware of any material change to the related Mortgaged
Property having occurred and affecting the validity of such appraisal or
valuation, as applicable and provides notice to the Master Servicer to use such
previous Appraisal or update.
Any Appraisal Reduction in respect of the Universal Hotel Portfolio
Whole Loan shall be calculated by the Universal Hotel Portfolio Master Servicer
in accordance with and pursuant to the terms of the Universal Hotel Portfolio
Pooling Agreement.
Any Mortgage Loan previously subject to an Appraisal Reduction which
Mortgage Loan has become a Corrected Mortgage Loan (for such purposes taking
into account any amendment or modification of such Mortgage Loan), and with
respect to which no other Appraisal Reduction Event has occurred and is
continuing, will no longer be subject to an Appraisal Reduction.
Notwithstanding anything herein to the contrary, the aggregate
Appraisal Reduction related to a Mortgage Loan (other than the Universal Hotel
Portfolio Mortgage Loan) or the related REO Property will be reduced to zero as
of the date on which such Mortgage Loan is paid in full, liquidated, repurchased
or otherwise removed from the Trust Fund.
"Appraisal Reduction Event": With respect to any Mortgage Loan
(other than the Universal Hotel Portfolio Mortgage Loan), the earliest of (i)
120 days after an uncured delinquency (without regard to the application of any
grace period) occurs in respect of such Mortgage Loan, (ii) the date on which a
reduction in the amount of Monthly Payments on such Mortgage Loan, or a change
in any other material economic term of such Mortgage Loan (other than an
extension of the Maturity Date), becomes effective as a result of a modification
of such Mortgage Loan by the Special Servicer, (iii) the date on which a
receiver has been appointed, (iv) 60 days after a Mortgagor declares bankruptcy,
(v) 60 days after the date on which an involuntary petition of bankruptcy is
filed with respect to the related Mortgagor, if not dismissed within such time,
(vi) 120 days (or 90 days with respect to a Specially Serviced Mortgage Loan)
after an uncured delinquency occurs in respect of a Balloon Payment with respect
to such Mortgage Loan and (vii) immediately after such Mortgage Loan becomes an
REO Loan; provided, however, that an Appraisal Reduction Event shall not occur
at any time when the aggregate Certificate Balances of all Classes of
Certificates (other than the Class A Certificates) have been reduced to zero.
The Special Servicer shall notify the Master Servicer, or the Master Servicer
shall notify the Special Servicer, as applicable, promptly upon the occurrence
of any of the foregoing events.
"Appraised Value": With respect to any Mortgaged Property (other
than the Universal Hotel Portfolio Mortgage Loan), the appraised value thereof
as determined by an Appraisal of the Mortgaged Property securing the related
Mortgage Loan. With respect to the Universal Hotel Portfolio Mortgaged Property,
the appraised value allocable thereto, as determined pursuant to the Universal
Hotel Portfolio Pooling Agreement.
"ARD Loan": Any Mortgage Loan that provides that if the unamortized
principal balance thereof is not repaid on its Anticipated Repayment Date, such
Mortgage Loan will accrue Excess Interest at the rate specified in the related
Mortgage Note and the Mortgagor is required to apply excess monthly cash flow
generated by the related Mortgaged Property to the repayment of the outstanding
principal balance on such Mortgage Loan.
"Asset Status Report": As defined in Section 3.21(d).
"Assignment": As defined in Section 2.01(c).
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar instrument executed by the
Mortgagor, assigning to the mortgagee all of the income, rents and profits
derived from the ownership, operation, leasing or disposition of all or a
portion of such Mortgaged Property, in the form which was duly executed,
acknowledged and delivered, as amended, modified, renewed or extended through
the date hereof and from time to time hereafter.
"Assumed Scheduled Payment": For any Due Period and with respect to
any Mortgage Loan that is delinquent in respect of its Balloon Payment
(including any REO Loan as to which the Balloon Payment would have been past
due), an amount equal to the sum of (a) the principal portion of the Monthly
Payment that would have been due on such Mortgage Loan on the related Due Date
based on the constant payment required by the related Mortgage Note or the
original amortization schedule thereof (as calculated with interest at the
related Mortgage Rate), if applicable, assuming such Balloon Payment has not
become due, after giving effect to any reduction in the principal balance
thereof occurring in connection with a modification of such Mortgage Loan in
connection with a default or bankruptcy or similar proceedings, and (b) interest
on the Stated Principal Balance of such Mortgage Loan at the applicable Mortgage
Rate (net of interest at the Servicing Fee Rate).
"Authenticating Agent": The Paying Agent or any agent of the Trustee
appointed to act as Authenticating Agent pursuant to Section 5.01.
"Available Distribution Amount": With respect to any Distribution
Date and the Mortgage Loans (and in the case of the Universal Hotel Portfolio
Mortgage Loan, only to the extent received by the Trust pursuant to the
Universal Hotel Portfolio Intercreditor Agreement), an amount equal to the sum
of (without duplication):
(a) the aggregate amount relating to the Mortgage Loans on deposit
in the Certificate Account (exclusive of any Net Investment Earnings
contained therein and exclusive of any amount on deposit in or credited to
any portion of the Certificate Account that is held for the benefit of the
Companion Holders) and the Lower-Tier Distribution Account as of the close
of business on the related P&I Advance Date, exclusive of (without
duplication):
(i) all Monthly Payments paid by the Mortgagors that are due
on a Due Date following the end of the related Due Period and, with
respect to the first Due Date, any interest amounts relating to the
period prior to the applicable Cut-off Date;
(ii) all unscheduled Principal Prepayments (together with any
related payments of interest allocable to the period following the
related Due Date for the related Mortgage Loan), Liquidation
Proceeds or Insurance and Condemnation Proceeds, in each case,
received subsequent to the related Determination Date (or, with
respect to voluntary Principal Prepayments for each Mortgage Loan
with a Due Date occurring after the related Determination Date, the
related Due Date);
(iii) all amounts payable or reimbursable to any Person from
the Certificate Account pursuant to clauses (ii) through (xvi),
inclusive, and clauses (xix) and (xx) of Section 3.05(a);
(iv) all amounts payable or reimbursable to any Person from
the Lower-Tier Distribution Account pursuant to clauses (ii) through
(vii), inclusive, of Section 3.05(b);
(v) Excess Interest;
(vi) all Yield Maintenance Charges;
(vii) all amounts deposited in the Certificate Account, the
Lower-Tier Distribution Account in error; and
(viii) with respect to the Interest Reserve Loans and any
Distribution Date relating to each Interest Accrual Period ending in
(1) each January or (2) any December in a year immediately preceding
a year which is not a leap year, an amount equal to one day of
interest on the Stated Principal Balance of such Mortgage Loan as of
the Due Date in the month preceding the month in which such
Distribution Date occurs at the related Mortgage Rate to the extent
such amounts are Withheld Amounts;
(b) if and to the extent not already included in clause (a) hereof,
the aggregate amount transferred from the REO Account to the Certificate
Account for such Distribution Date pursuant to Section 3.16(c);
(c) the aggregate amount of any P&I Advances made by the Master
Servicer or the Trustee, as applicable, for such Distribution Date
pursuant to Section 4.03 or 7.05 (net of the related Trustee Fee with
respect to the Mortgage Loans for which such P&I Advances are made);
(d) for the Distribution Date occurring in each March, the Withheld
Amounts remitted to the Lower-Tier Distribution Account pursuant to
Section 3.25(b); and
(e) with respect to the first Distribution Date, the Closing Date
Deposit Amount and the Westlink Shopping Center Deposit Amount deposited
into the Distribution Account pursuant to Section 2.01(g).
Notwithstanding the investment of funds held in the Certificate Account pursuant
to Section 3.06, for purposes of calculating the Available Distribution Amount,
the amounts so invested shall be deemed to remain on deposit in such account.
"Balloon Mortgage Loan": Any Mortgage Loan or Companion 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 Maturity
Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of
any date of determination, the Monthly Payment payable on the Maturity Date of
such Mortgage Loan.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the United States Code).
"Base Interest Fraction": With respect to any Principal Prepayment
on any Mortgage Loan and with respect to any Class X-0, Xxxxx X-0, Class X-0,
Xxxxx X-0X, Xxxxx X-0X, Class A-SB, Class A-1A, Class A-J, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J and Class K Certificate, a
fraction (a) whose numerator is the greater of (x) zero and (y) the amount by
which (i) the Pass-Through Rate on such Class of Certificates exceeds (ii) the
discount rate used in accordance with the related Mortgage Loan documents in
calculating the Yield Maintenance Charge with respect to such Principal
Prepayment and (b) whose denominator is the amount by which (i) the Mortgage
Rate on such Mortgage Loan exceeds (ii) the discount rate used in accordance
with the related Mortgage Loan documents in calculating the Yield Maintenance
Charge with respect to such Principal Prepayment. However, under no
circumstances shall the Base Interest Fraction be greater than one. If such
discount rate is greater than the Mortgage Rate on such Mortgage Loan, then the
Base Interest Fraction will equal zero. The Master Servicer shall provide to the
Paying Agent the discount rate references above for purposes of calculating the
Base Interest Fraction.
"Bid Allocation": With respect to the Master Servicer and each
Sub-Servicer therefor 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 Servicing Fee Amount for the Master Servicer or such Sub-Servicer therefor,
as the case may be, as of such date of determination, over (b) the aggregate of
the Servicing Fee Amounts for the Master Servicer and all Sub-Servicers therefor
as of such date of determination.
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Breach": As defined in Section 2.03(b).
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, New York, Philadelphia, Pennsylvania,
Chicago, Illinois, Columbia, Maryland or the city and state in which the
Corporate Trust Office of the Trustee, or the principal place of business of the
Master Servicer, the Paying Agent or the Special Servicer is located, are
authorized or obligated by law or executive order to remain closed.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's Commercial Mortgage
Pass-Through Certificates, Series 2005-LDP3, as executed and delivered by the
Certificate Registrar and authenticated and delivered hereunder by the
Authenticating Agent.
"Certificate Account": A segregated custodial 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 "GMAC Commercial Mortgage Corporation, as Master Servicer, on behalf of
Xxxxx Fargo Bank, N.A., as Trustee, in trust for the registered holders of X.X.
Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2005-LDP3, Certificate Account." Any such
account or accounts shall be an Eligible Account. Subject to the related
Intercreditor Agreement and taking into account that each Companion Loan is
subordinate to the related AB Mortgage Loan to the extent set forth in the
related Intercreditor Agreement, the subaccount described in the second
paragraph of Section 3.04(b) that is part of the Certificate Account shall be
for the benefit of the related Companion Holder, to the extent funds on deposit
in such subaccount are attributed to such Companion Loan and shall not be an
asset of the Trust Fund or the Upper-Tier REMIC or Lower-Tier REMIC formed
hereunder.
"Certificate Balance": With respect to any Class of Certificates
(other than the Residual Certificates, the Class S Certificates and the Class X
Certificates), (i) on or prior to the first Distribution Date, an amount equal
to the Original Certificate Balance of such Class as specified in the
Preliminary Statement hereto, and (ii) as of any date of determination after the
first Distribution Date, the Certificate Balance of such Class of Certificates
on the Distribution Date immediately prior to such date of determination
(determined as adjusted pursuant to Section 1.02(iii)).
"Certificate Deferred Interest": For any Distribution Date with
respect to any Class of Certificates (other than the Residual Certificates), the
amount of Mortgage Deferred Interest allocated to such Class of Certificates
pursuant to Section 4.06(a).
"Certificate Factor": With respect to any Class of Certificates, as
of any date of determination, a fraction, expressed as a decimal carried to at
least eight (8) places, the numerator of which is the then related Certificate
Balance, and the denominator of which is the related Original Certificate
Balance.
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the books
of the Depository or on the books of a Depository Participant or on the books of
an indirect participating brokerage firm for which a Depository Participant acts
as agent.
"Certificate Ownership Certification": As defined in Section 5.06.
"Certificate Register" and "Certificate Registrar": The register
maintained and registrar appointed pursuant to Section 5.02.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register; provided, however, that
solely for the purposes of giving any consent, approval or waiver pursuant to
this Agreement, any Certificate registered in the name of the Master Servicer,
the Special Servicer, the Trustee, the Paying Agent, the Depositor, any Mortgage
Loan Seller or any Affiliate thereof shall be deemed not to be outstanding, and
the Voting Rights to which it is entitled shall not be taken into account in
determining whether the requisite percentage of Voting Rights necessary to
effect any such consent, approval or waiver has been obtained, but only if such
consent, approval or waiver sought from such party would in any way increase the
compensation of the Depositor, the Master Servicer, the Special Servicer, the
Trustee or the Special Servicer or limit the obligations of the Depositor, the
Master Servicer, the Special Servicer, the Trustee or the Special Servicer, as
applicable, hereunder; provided, however, so long as there is no Event of
Default with respect to the Master Servicer or the Special Servicer, the Master
Servicer and the Special Servicer shall be entitled to exercise such Voting
Rights with respect to any issue which could reasonably be believed to adversely
affect such party's compensation or increase its obligations or liabilities
hereunder; provided further, however, that such restrictions shall not apply to
the exercise of the Special Servicer's rights (or the Master Servicer's or any
Mortgage Loan Seller's rights, if any) or the rights of any of their Affiliates
as a member of the Controlling Class. The Trustee and the Paying Agent shall
each be entitled to request and rely upon a certificate of the Master Servicer,
the Special Servicer or the Depositor in determining whether a Certificate is
registered in the name of an Affiliate of such Person. All references herein to
"Holders" or "Certificateholders" shall reflect the rights of Certificate Owners
as they may indirectly exercise such rights through the Depository and the
Depository Participants, except as otherwise specified herein; provided,
however, that the parties hereto shall be required to recognize as a "Holder" or
"Certificateholder" only the Person in whose name a Certificate is registered in
the Certificate Register.
"Class": With respect to any Certificates or Uncertificated
Lower-Tier Interests, all of the Certificates bearing the same alphabetical
(and, if applicable, numerical) Class designation and each designated
Uncertificated Lower-Tier Interest.
"Class A Certificate": Any Class A-1, Class A-1A, Class A-2, Class
A-3, Class A-4A, Class A-4B and Class A-SB Certificate.
"Class A-1 Certificate": A Certificate designated as "Class A-1" on
the face thereof, in the form of Exhibit A-1 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-1 Pass-Through Rate": With respect to any Distribution
Date, a fixed per annum rate equal to 4.6550%.
"Class A-1A Certificate": A Certificate designated as "Class A-1A"
on the face thereof, in the form of Exhibit A-7 hereto, and evidencing a
"regular interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-1A Pass-Through Rate": With respect to any Distribution
Date, a fixed per annum rate equal to the lesser of (i) 4.9380% and (ii) the
Weighted Average Net Mortgage Rate.
"Class A-2 Certificate": A Certificate designated as "Class A-2" on
the face thereof, in the form of Exhibit A-2 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-2 Pass-Through Rate": With respect to any Distribution
Date, a fixed per annum rate equal to 4.8510%.
"Class A-3 Certificate": A Certificate designated as "Class A-3" on
the face thereof, in the form of Exhibit A-3 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-3 Pass-Through Rate": With respect to any Distribution
Date, a fixed per annum rate equal to 4.9590%.
"Class A-4A Certificate": A Certificate designated as "Class A-4A"
on the face thereof, in the form of Exhibit A-4 hereto, and evidencing a
"regular interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-4A Pass-Through Rate": With respect to any Distribution
Date, a fixed per annum rate equal to the lesser of (i) 4.9360% and (ii) the
Weighted Average Net Mortgage Rate.
"Class A-4B Certificate": A Certificate designated as "Class A-4B"
on the face thereof, in the form of Exhibit A-5 hereto, and evidencing a
"regular interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-4B Pass-Through Rate": With respect to any Distribution
Date, a fixed per annum rate equal to the lesser of (i) 4.9960% and (ii) the
Weighted Average Net Mortgage Rate.
"Class A-J Certificate": A Certificate designated as "Class A-J" on
the face thereof, in the form of Exhibit A-10 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-J Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the Weighted Average Net Mortgage Rate minus
0.2060%.
"Class A-SB Certificate": A Certificate designated as "Class A-SB"
on the face thereof, in the form of Exhibit A-6 hereto, and evidencing a
"regular interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-SB Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the lesser of (i) 4.8930% and (ii) the Weighted
Average Net Mortgage Rate.
"Class A-SB Planned Principal Balance": With respect to any
Distribution Date, the planned principal amount for such Distribution Date
specified in Schedule 4 hereto relating to the Class A-SB Certificates.
"Class B Certificate": A Certificate designated as "Class B" on the
face thereof, in the form of Exhibit A-11 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class B Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate minus 0.1270%.
"Class C Certificate": A Certificate designated as "Class C" on the
face thereof, in the form of Exhibit A-12 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class C Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate minus 0.1080%.
"Class D Certificate": A Certificate designated as "Class D" on the
face thereof, in the form of Exhibit A-13 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class D Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate minus 0.0090%.
"Class E Certificate": A Certificate designated as "Class E" on the
face thereof, in the form of Exhibit A-14 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class E Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class F Certificate": A Certificate designated as "Class F" on the
face thereof, in the form of Exhibit A-15 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class F Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class G Certificate": A Certificate designated as "Class G" on the
face thereof, in the form of Exhibit A-16 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class G Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class H Certificate": A Certificate designated as "Class H" on the
face thereof, in the form of Exhibit A-17 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class H Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class J Certificate": A Certificate designated as "Class J" on the
face thereof, in the form of Exhibit A-18 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class J Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) 4.7110% and (ii) the Weighted
Average Net Mortgage Rate.
"Class K Certificate": A Certificate designated as "Class K" on the
face thereof, in the form of Exhibit A-19 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class K Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) 4.7110% and (ii) the Weighted
Average Net Mortgage Rate.
"Class L Certificate": A Certificate designated as "Class L" on the
face thereof, in the form of Exhibit A-20 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class L Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) 4.7110% and (ii) the Weighted
Average Net Mortgage Rate.
"Class LA-1-1 Uncertificated Interest": An uncertificated - regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1-4 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-4 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-5 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-6 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-7 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-8 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-9 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-10 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-11 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-12 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-13 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-14 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-15 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-2-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-2-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-2-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-2-4 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-3-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-3-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-3-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-3-4 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-3-5 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-3-6 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-3-7 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-4A-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-4A-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-4A-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-4B Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-J Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-SB-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-SB-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-SB-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-SB-4 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-SB-5 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-SB-6 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LB Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LC Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LD-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LD-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LD-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LD-4 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LE-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LE-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LF-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LF-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LF-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LG-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LG-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LH-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LH-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LH-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LJ Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LK-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LK-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LL Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LM Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LN Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LNR Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LO Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LR Certificate": A Certificate designated as "Class LR" on
the face thereof, in the form of Exhibit A-27 hereto, evidencing the sole class
of "residual interests" in the Lower-Tier REMIC for purposes of the REMIC
Provisions.
"Class M Certificate": A Certificate designated as "Class M" on the
face thereof, in the form of Exhibit A-21 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class M Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) 4.7110% and (ii) the Weighted
Average Net Mortgage Rate.
"Class N Certificate": A Certificate designated as "Class N" on the
face thereof, in the form of Exhibit A-22 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class N Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) 4.7110% and (ii) the Weighted
Average Net Mortgage Rate.
"Class Notional Amount": The Class X-1 Notional Amount or the Class
X-2 Notional Amount, as the context requires.
"Class NR Certificate": A Certificate designated as "Class NR" on
the face thereof, in the form of Exhibit A-24 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class NR Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) 4.7110% and (ii) the Weighted
Average Net Mortgage Rate.
"Class O Certificate": A Certificate designated as "Class O" on the
face thereof, in the form of Exhibit A-23 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class O Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) 4.7110% and (ii) the Weighted
Average Net Mortgage Rate.
"Class R Certificate": A Certificate designated as "Class R" on the
face thereof in the form of Exhibit A-26 hereto, and evidencing the sole class
of "residual interest" in the Upper-Tier REMIC for purposes of the REMIC
Provisions.
"Class S Certificate": A Certificate designated as "Class S" on the
face thereof, in the form of Exhibit A-25 hereto, and evidencing an undivided
beneficial interest in the portion of the Grantor Trust consisting of the Excess
Interest, the Excess Interest Distribution Account and the proceeds thereof.
"Class Unpaid Interest Shortfall": As to any Distribution Date and
any Class of Certificates, the excess, if any, of (a) the sum of (i) the
Distributable Certificate Interest in respect of such Class of Certificates for
the immediately preceding Distribution Date and (ii) any outstanding Class
Unpaid Interest Shortfall payable to such Class of Certificates on such
preceding Distribution Date over (b) the aggregate amount in respect of interest
actually distributed to such Class of Certificates on such immediately preceding
Distribution Date. The Class Unpaid Interest Shortfall with respect to any Class
of Certificates as of the initial Distribution Date is zero. No interest shall
accrue on Class Unpaid Interest Shortfalls.
"Class X Certificates": The Class X-1 Certificates and the Class X-2
Certificates.
"Class X Reference Rate": With respect to any Distribution Date, the
rate for such Distribution Date specified in Schedule 3 hereto.
"Class X-1 Certificate": Any one of the Certificates with a "Class
X-1" designation on the face thereof, substantially in the form of Exhibit A-8
attached hereto, and evidencing a "regular interest" in the Upper-Tier REMIC for
purposes of the REMIC Provisions.
"Class X-1 Notional Amount": As of any date of determination, the
sum of the then Component Notional Amounts of all the Components.
"Class X-1 Pass-Through Rate": With respect to any Distribution
Date, the weighted average of the Class X-1 Strip Rates for the respective
Components for such Distribution Date (weighted on the basis of the respective
Component Notional Amounts of such Components outstanding immediately prior to
such Distribution Date).
"Class X-1 Strip Rate": (A) With respect to any Class of the
Components (other than those Components that are Class X-2 Components which are
included for purposes of calculating the Class X-2 Notional Amount for such
Distribution Date) for any Distribution Date, a rate per annum equal to (i) the
Weighted Average Net Mortgage Rate for such Distribution Date, minus (ii) the
Pass-Through Rate for the Related Certificates and (B) with respect to any
Components that are Class X-2 Components which are included for purposes of
calculating the Class X-2 Notional Amount for such Distribution Date (i) for any
Distribution Date occurring on or before the Class X-2 Termination Date, (x) the
Weighted Average Net Mortgage Rate for such Distribution Date minus (y)(1) with
respect to Component XA-J, Component XB, Component XC, Component XD-1, Component
XD-2, Component XD-3, and Component XD-4, the sum of (I) the Class X-2 Strip
Rate for the applicable Class X-2 Component and (II) the Pass-Through Rate for
the Related Certificates for such Distribution Date and (2) for each other Class
X-2 Component, the greater of (I) the Class X Reference Rate for such
Distribution Date and (II) the Pass-Through Rate for the Related Certificate for
such Distribution Date, and (ii) for any Distribution Date occurring after the
Class X-2 Termination Date, a rate per annum equal to (x) the Weighted Average
Net Mortgage Rate for such Distribution Date, minus (y) the Pass-Through Rate
for the Related Certificates for such Distribution Date; provided, that in no
event shall any Class X-1 Strip Rate be less than zero.
"Class X-2 Certificate": Any one of the Certificates with a "Class
X-2" designation on the face thereof, substantially in the form of Exhibit A-9
attached hereto and evidencing a "regular interest" in the Upper-Tier REMIC for
purposes of the REMIC Provisions.
"Class X-2 Components": Each of Component XX-0-0, Xxxxxxxxx XX-0-0,
Component XX-0-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0,
Component XX-0X-0, Xxxxxxxxx XX-0X-0, Component XX-0X-0, Xxxxxxxxx XX-0X-0,
Xxxxxxxxx XX-0X-0, Component XA-1A-10, Component XA-1A-11, Component XA-1A-12,
Component XA-1A-13, Component XX-0X-00, Xxxxxxxxx XX-0X-00, Xxxxxxxxx XX-0-0,
Xxxxxxxxx XX-0-0, Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0,
Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XX-0-0,
Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XX-0X-0, Xxxxxxxxx XX-0X-0,
Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X, Component XA-SB-1, Component XA-SB-2,
Component XA-SB-3, Component XA-SB-4, Component XA-SB-5, Component XA-SB-6,
Component XA-J, Component XB, Component XC, Component XD-1, Component XD-2,
Component XD-3, Component XD-4, Component XE-1, Component XE-2, Component XF-1,
Component XF-2, Component XF-3, Component XG-1, Component XG-2, Component XH-1,
Component XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx XX, Component XK-1, Component XK-2,
Component XL and Component XM.
"Class X-2 Notional Amount": (i) With respect to any Distribution
Date on or prior to the Distribution Date in February 2006, the sum of the then
Component Notional Amounts of Component XX-0-0, Xxxxxxxxx XX-0-0, Component
XX-0-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Component
XX-0X-0, Xxxxxxxxx XX-0X-0, Component XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx
XX-0X-0, Component XA-1A-10, Component XA-1A-11, Component XA-1A-12, Component
XA-1A-13, Component XX-0X-00, Xxxxxxxxx XX-0X-00, Xxxxxxxxx XX-0-0, Xxxxxxxxx
XX-0-0, Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XX-0-0,
Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XX-0-0, Xxxxxxxxx XX-0-0,
Xxxxxxxxx XX-0-0, Component XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0,
Xxxxxxxxx XX-0X, Component XA-SB-1, Component XA-SB-2, Component XA-SB-3,
Component XA-SB-4, Component XA-SB-5, Component XA-SB-6, Component XA-J,
Component XB, Component XC, Component XD-1, Component XD-2, Component XD-3,
Component XD-4, Component XE-1, Component XE-2, Component XF-1, Component XF-2,
Component XF-3, Component XG-1, Component XG-2, Component XH-1, Component XX-0,
Xxxxxxxxx XX-0, Xxxxxxxxx XX, Component XK-1, Component XK-2, Component XL and
Component XM.
(i) With respect to any Distribution Date after the
Distribution Date in February 2006 through and including the
Distribution Date in August 2006, the sum of the then Component
Notional Amounts of Component XX-0-0, Xxxxxxxxx XX-0-0, Component
XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Component XA-1A-6,
Component XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Component
XA-1A-10, Component XA-1A-11, Component XA-1A-12, Component
XA-1A-13, Component XX-0X-00, Xxxxxxxxx XX-0X-00, Xxxxxxxxx XX-0-0,
Xxxxxxxxx XX-0-0, Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx
XX-0-0, Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0,
Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component
XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X,
Component XA-SB-1, Component XA-SB-2, Component XA-SB-3, Component
XA-SB-4, Component XA-SB-5, Component XA-SB-6, Component XA-J,
Component XB, Component XC, Component XD-1, Component XD-2,
Component XD-3, Component XD-4, Component XE-1, Component XE-2,
Component XF-1, Component XF-2, Component XF-3, Component XG-1,
Component XG-2, Component XH-1, Component XX-0, Xxxxxxxxx XX-0,
Xxxxxxxxx XX, Component XK-1, Component XK-2, Component XL and
Component XM.
(ii) With respect to any Distribution Date after the
Distribution Date in August 2006 through and including the
Distribution Date in February 2007, the sum of the then Component
Notional Amounts of Component XX-0-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx
XX-0X-0, Xxxxxxxxx XX-0X-0, Component XX-0X-0, Xxxxxxxxx XX-0X-0,
Xxxxxxxxx XX-0X-0, Component XA-1A-10, Component XA-1A-11, Component
XA-1A-12, Component XA-1A-13, Component XX-0X-00, Xxxxxxxxx
XX-0X-00, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XA-2-3,
Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component
XA-3-3, Component XA-3-4, Component XX-0-0, Xxxxxxxxx XX-0-0,
Xxxxxxxxx XX-0-0, Component XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx
XX-0X-0, Xxxxxxxxx XX-0X, Component XA-SB-1, Component XA-SB-2,
Component XA-SB-3, Component XA-SB-4, Component XA-SB-5, Component
XA-SB-6, Component XA-J, Component XB, Component XC, Component XD-1,
Component XD-2, Component XD-3, Component XD-4, Component XE-1,
Component XE-2, Component XF-1, Component XF-2, Component XF-3,
Component XG-1, Component XG-2, Component XH-1, Component XX-0,
Xxxxxxxxx XX-0, Xxxxxxxxx XX, Component XK-1, Component XK-2,
Component XL and Component XM.
(iii) With respect to any Distribution Date after the
Distribution Date in February 2007 through and including the
Distribution Date in August 2007, the sum of the then Component
Notional Amounts of Component XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx
XX-0X-0, Xxxxxxxxx XX-0X-0, Component XA-1A-9, Component XA-1A-10,
Component XA-1A-11, Component XA-1A-12, Component XA-1A-13,
Component XX-0X-00, Xxxxxxxxx XX-0X-00, Xxxxxxxxx XX-0-0, Xxxxxxxxx
XX-0-0, Component XA-2-4, Component XA-3-1, Component XX-0-0,
Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XX-0-0, Xxxxxxxxx
XX-0-0, Xxxxxxxxx XX-0-0, Component XX-0X-0, Xxxxxxxxx XX-0X-0,
Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X, Component XA-SB-1, Component
XA-SB-2, Component XA-SB-3, Component XA-SB-4, Component XA-SB-5,
Component XA-SB-6, Component XA-J, Component XB, Component XC,
Component XD-1, Component XD-2, Component XD-3, Component XD-4,
Component XE-1, Component XE-2, Component XF-1, Component XF-2,
Component XF-3, Component XG-1, Component XG-2, Component XH-1,
Component XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx XX, Component XK-1,
Component XK-2, Component XL and Component XM.
(iv) With respect to any Distribution Date after the
Distribution Date in August 2007 through and including the
Distribution Date in February 2008, the sum of the then Component
Notional Amounts of Component XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx
XX-0X-0, Xxxxxxxxx XX-0X-0, Component XA-1A-10, Component XA-1A-11,
Component XA-1A-12, Component XA-1A-13, Component XX-0X-00,
Xxxxxxxxx XX-0X-00, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component
XA-3-1, Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0,
Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component
XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X,
Component XA-SB-1, Component XA-SB-2, Component XA-SB-3, Component
XA-SB-4, Component XA-SB-5, Component XA-SB-6, Component XA-J,
Component XB, Component XC, Component XD-1, Component XD-2,
Component XD-3, Component XD-4, Component XE-1, Component XE-2,
Component XF-1, Component XF-2, Component XF-3, Component XG-1,
Component XG-2, Component XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx XX-0,
Xxxxxxxxx XX and Component XK-2.
(v) With respect to any Distribution Date after the
Distribution Date in February 2008 through and including the
Distribution Date in August 2008, the sum of the then Component
Notional Amounts of Component XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx
XX-0X-0, Component XA-1A-10, Component XA-1A-11, Component XA-1A-12,
Component XA-1A-13, Component XX-0X-00, Xxxxxxxxx XX-0X-00,
Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XX-0-0, Xxxxxxxxx
XX-0-0, Xxxxxxxxx XX-0-0, Component XX-0-0, Xxxxxxxxx XX-0-0,
Xxxxxxxxx XX-0-0, Component XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx
XX-0X-0, Xxxxxxxxx XX-0X, Component XA-SB-1, Component XA-SB-2,
Component XA-SB-3, Component XA-SB-4, Component XA-SB-5, Component
XA-SB-6, Component XA-J, Component XB, Component XC, Component XD-1,
Component XD-2, Component XD-3, Component XD-4, Component XE-1,
Component XE-2, Component XF-1, Component XF-2, Component XF-3,
Component XG-1, Component XG-2, Component XH-2 and Component XH-3.
(vi) With respect to any Distribution Date after the
Distribution Date in August 2008 through and including the
Distribution Date in February 2009, the sum of the then Component
Notional Amounts of Component XX-0X-0, Xxxxxxxxx XX-0X-0, Component
XA-1A-10, Component XA-1A-11, Component XA-1A-12, Component
XA-1A-13, Component XX-0X-00, Xxxxxxxxx XX-0X-00, Xxxxxxxxx XX-0-0,
Xxxxxxxxx XX-0-0, Component XA-3-4, Component XX-0-0, Xxxxxxxxx
XX-0-0, Xxxxxxxxx XX-0-0, Component XX-0X-0, Xxxxxxxxx XX-0X-0,
Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X, Component XA-SB-1, Component
XA-SB-2, Component XA-SB-3, Component XA-SB-4, Component XA-SB-5,
Component XA-SB-6, Component XA-J, Component XB, Component XC,
Component XD-1, Component XD-2, Component XD-3, Component XD-4,
Component XE-1, Component XE-2, Component XF-1, Component XF-2,
Component XF-3, Component XG-1, Component XG-2 and Component XH-3.
(vii) With respect to any Distribution Date after the
Distribution Date in February 2009 through and including the
Distribution Date in August 2009, the sum of the then Component
Notional Amounts of Component XX-0X-0, Xxxxxxxxx XX-0X-00, Xxxxxxxxx
XX-0X-00, Xxxxxxxxx XX-0X-00, Component XA-1A-13, Component
XX-0X-00, Xxxxxxxxx XX-0X-00, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0,
Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component
XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X,
Component XA-SB-1, Component XA-SB-2, Component XA-SB-3, Component
XA-SB-4, Component XA-SB-5, Component XA-SB-6, Component XA-J,
Component XB, Component XC, Component XD-1, Component XD-2,
Component XD-3, Component XD-4, Component XE-1, Component XE-2,
Component XF-1, Component XF-2, Component XF-3 and Component XG-2.
(viii) With respect to any Distribution Date after the
Distribution Date in August 2009 through and including the
Distribution Date in February 2010, the sum of the then Component
Notional Amounts of Component XX-0X-00, Xxxxxxxxx XX-0X-00,
Xxxxxxxxx XX-0X-00, Xxxxxxxxx XX-0X-00, Component XA-1A-14,
Component XA-1A-15, Component XA-3-4, Component XX-0-0, Xxxxxxxxx
XX-0-0, Xxxxxxxxx XX-0-0, Component XX-0X-0, Xxxxxxxxx XX-0X-0,
Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X, Component XA-SB-1, Component
XA-SB-2, Component XA-SB-3, Component XA-SB-4, Component XA-SB-5,
Component XA-SB-6, Component XA-J, Component XB, Component XC,
Component XD-1, Component XD-2, Component XD-3, Component XD-4,
Component XE-1, Component XE-2, Component XF-2 and Component XF-3.
(ix) With respect to any Distribution Date after the
Distribution Date in February 2010 through and including the
Distribution Date in August 2010, the sum of the then Component
Notional Amounts of Component XX-0X-00, Xxxxxxxxx XX-0X-00,
Xxxxxxxxx XX-0X-00, Component XX-0X-00, Xxxxxxxxx XX-0X-00,
Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XA-3-7, Component
XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X,
Component XA-SB-2, Component XA-SB-3, Component XA-SB-4, Component
XA-SB-5, Component XA-SB-6, Component XA-J, Component XB, Component
XC, Component XD-1, Component XD-2, Component XD-3, Component XD-4,
Component XE-1, Component XE-2 and Component XF-3.
(x) With respect to any Distribution Date after the
Distribution Date in August 2010 through and including the
Distribution Date in February 2011, the sum of the then Component
Notional Amounts of Component XA-1A-12, Component XA-1A-13,
Component XX-0X-00, Xxxxxxxxx XX-0X-00, Xxxxxxxxx XX-0-0, Xxxxxxxxx
XX-0-0, Component XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0,
Xxxxxxxxx XX-0X, Component XA-SB-3, Component XA-SB-4, Component
XA-SB-5, Component XA-SB-6, Component XA-J, Component XB, Component
XC, Component XD-1, Component XD-2, Component XD-3, Component XD-4
and Component XE-2.
(xi) With respect to any Distribution Date after the
Distribution Date in February 2011 through and including the
Distribution Date in August 2011, the sum of the then Component
Notional Amounts of Component XX-0X-00, Xxxxxxxxx XX-0X-00,
Xxxxxxxxx XX-0X-00, Xxxxxxxxx XX-0-0, Component XX-0X-0, Xxxxxxxxx
XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X, Component XA-SB-4,
Component XA-SB-5, Component XA-SB-6, Component XA-J, Component XB,
Component XC, Component XD-2, Component XD-3 and Component XD-4.
(xii) With respect to any Distribution Date after the
Distribution Date in August 2011 through and including the
Distribution Date in February 2012, the sum of the then Component
Notional Amounts of Component XA-1A-14, Component XX-0X-00,
Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X, Component
XA-SB-5, Component XA-SB-6, Component XA-J, Component XB, Component
XC, Component XD-3, Component XD-4.
(xiii) With respect to any Distribution Date after the
Distribution Date in February 2012 through and including the
Distribution Date in August 2012, the sum of the then Component
Notional Amounts of Component XX-0X-00, Xxxxxxxxx XX-0X-0, Xxxxxxxxx
XX-0X, Component XA-SB-6, Component XA-J, Component XB, Component
XC, Component XD-4.
(xiv) after the Distribution Date in August 2012, $0.
"Class X-2 Pass-Through Rate": With respect to any Distribution
Date, the weighted average of the Class X-2 Strip Rates for the respective Class
X-2 Components that are Class X-2 Components which are included for purposes of
calculating the Class X-2 Notional Amount for such Distribution Date (weighted
on the basis of the respective Component Notional Amounts of such Components
outstanding immediately prior to such Distribution Date).
"Class X-2 Strip Rate": With respect to each Class X-2 Component for
any Distribution Date, a rate per annum equal to (i) for any Distribution Date
occurring on or before the Class X-2 Termination Date, (A) with respect to
Component XA-J, the lesser of (1) 0.1760% and (2) the Weighted Average Net
Mortgage Rate for such Distribution Date minus the Pass-Through Rate in effect
on such Distribution Date for the Class A-J Certificates, (B) with respect to
Component X-B the lesser of (1) 0.0970% and (2) the Weighted Average Net
Mortgage Rate for such Distribution Date minus the Pass-Through Rate in effect
on such Distribution Date for the Class B Certificates, (C) with respect to
Component XC, the lesser of (1) 0.0780% and (2) the Weighted Average Net
Mortgage Rate for such Distribution Date minus the Pass-Through Rate in effect
on such Distribution Date for the Class C Certificates, (D) with respect to
Component XD-1, Component XD-2, Component XD-3 and Component XD-4, the lesser of
(1) 0.0000% and (2) the Weighted Average Net Mortgage Rate for such Distribution
Date minus the Pass-Through Rate in effect on such Distribution Date for the
Class D Certificates, and (E) with respect to each other Class X-2 Component,
(1) the lesser of (I) the Weighted Average Net Mortgage Rate for such
Distribution Date and (II) the Class X Reference Rate for such Distribution
Date, minus (2) the Pass-Through Rate for the Related Certificates (provided,
that in no event shall any Class X-2 Strip Rate be less than zero) and (ii) for
any Distribution Date occurring after the Class X-2 Termination Date, 0% per
annum.
"Class X-2 Termination Date": The Distribution Date in August 2012.
"Clearstream": Clearstream Banking, societe anonyme or any successor
thereto.
"Closing Date": August 24, 2005.
"Closing Date Deposit Amount": $84,465.96, representing the
aggregate amount of interest that would have accrued at the related Mortgage
Rates during the Due Period ending in August 2005, for those Mortgage Loans
which do not have their first Monthly Payment due until October 2005.
"CMSA": The Commercial Mortgage Securities Association, or any
successor organization reasonably acceptable to the Trustee, the Paying Agent,
the Master Servicer and the Directing Certificateholder.
"CMSA Advance Recovery Report": The report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Advance Recovery Report" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Bond Level File": The data file in the "CMSA Bond Level File"
format substantially in the form of and containing the information called for
therein, or such other form for the presentation of such information as may be
approved from time to time by the CMSA for commercial mortgage securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "CMSA Bond Level
File" available as of the Closing Date on the CMSA website, as is reasonably
acceptable to the Paying Agent.
"CMSA Collateral Summary File": The data file in the "CMSA
Collateral Summary File" format substantially in the form of and containing the
information called for therein, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA Collateral Summary File" available as of the Closing Date on the CMSA
website, as is reasonably acceptable to the Paying Agent, the Trustee and the
Master Servicer.
"CMSA Comparative Financial Status Report": The monthly report in
"Comparative Financial Status Report" format substantially in the form of and
containing the information called for therein for the Mortgage Loans, or such
other form for the presentation of such information as may be approved from time
to time by the CMSA for commercial mortgage securities transactions generally
and, insofar as it requires the presentation of information in addition to that
called for by the form of the "Comparative Financial Status Report" available as
of the Closing Date on the CMSA website, is reasonably acceptable to the Master
Servicer or the Special Servicer, as applicable.
"CMSA Delinquent Loan Status Report": The monthly report in the
"Delinquent Loan Status Report" format substantially in the form of and
containing the information called for therein for the Mortgage Loans, or such
other form for the presentation of such information as may be approved from time
to time by the CMSA for commercial mortgage securities transactions generally
and, insofar as it requires the presentation of information in addition to that
called for the form of the "Delinquent Loan Status Report" available as of the
Closing Date on the CMSA website, is reasonably acceptable to the Master
Servicer or the Special Servicer, as applicable.
"CMSA Financial File": The data file in the "CMSA Financial File"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA Financial File" available as of the Closing Date on the CMSA website, is
reasonably acceptable to the Master Servicer or the Special Servicer, as
applicable.
"CMSA Historical Liquidation Report": The monthly report in the
"Historical Liquidation File" format substantially in the form of and containing
the information called for therein for the Mortgage Loans, or such other form
for the presentation of such information as may be approved from time to time by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "Historical Liquidation Report" available as of the Closing Date
on the CMSA website, is reasonably acceptable to the Master Servicer or the
Special Servicer, as applicable.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report": The monthly report in the "Historical Loan Modification and Corrected
Mortgage Loan Report" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "Historical Loan Modification and Corrected Mortgage Loan
Report" available as of the Closing Date on the CMSA website, is reasonably
acceptable to the Master Servicer or the Special Servicer, as applicable.
"CMSA Investor Reporting Package (IRP)": The collection of reports
specified by the CMSA from time to time as the "CMSA Investor Reporting
Package." As of the Closing Date, the CMSA IRP contains seven electronic files
((1) CMSA Loan Set up File, (2) CMSA Loan Periodic Update File, (3) CMSA
Property File, (4) CMSA Bond Level File, (5) CMSA Collateral Summary File, (6)
CMSA Financial File and (7) CMSA Special Servicer Loan File) and ten
surveillance reports ((1) CMSA Servicer Watch List, (2) CMSA Delinquent Loan
Status Report, (3) CMSA REO Status Report, (4) CMSA Comparative Financial Status
Report, (5) CMSA Historical Loan Modification and Corrected Mortgage Loan
Report, (6) CMSA Historical Liquidation Report, (7) CMSA Operating Statement
Analysis Report, (8) CMSA NOI Adjustment Worksheet, (9) CMSA Loan Level
Reserve/LOC Report and (10) CMSA Reconciliation of Funds Report). In addition,
the CMSA Investor Reporting Package shall include the CMSA Advance Recovery
Report (notwithstanding that such form of report has not been adopted or
recommended by the CMSA) and the Realized Loss Report in the form attached
hereto as Exhibit W (the "Realized Loss Report"). The CMSA IRP shall be
substantially in the form of, and containing the information called for in, the
downloadable forms of the "CMSA IRP" 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 or reports as may from time to time be
approved by the CMSA for commercial mortgage backed securities transaction
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "CMSA IRP" available as of the
Closing Date on the CMSA website, as is reasonably acceptable to the Master
Servicer, the Special Servicer, the Trustee and the Paying Agent. For the
purposes of the production of the CMSA Comparative Financial Status Report by
the Master Servicer or the Special Servicer of any such report that is required
to state information for any period prior to the Cut off Date, the Master
Servicer or the Special Servicer, as the case may be, may conclusively rely
(without independent verification), absent manifest error, on information
provided to it by the Mortgage Loan Sellers or by the related Mortgagor or (x)
in the case of such a report produced by the Master Servicer, by the Special
Servicer (if other than the Master Servicer or an Affiliate thereof) and (y) in
the case of such a report produced by the Special Servicer, by the Master
Servicer (if other than the Special Servicer or an Affiliate thereof).
"CMSA Loan Level Reserve/LOC Report": The monthly report in the
"CMSA Loan Level Reserve/LOC Report" format substantially in the form of and
containing the information called for therein for the Mortgage Loans, or such
other form for the presentation of such information as may be approved from time
to time by the CMSA for commercial mortgage securities transactions generally
and, insofar as it requires the presentation of information in addition to that
called for by the form of the "Loan Level Reserve/LOC Report" available as of
the Closing Date on the CMSA website, is reasonably acceptable to the Master
Servicer.
"CMSA Loan Periodic Update File": The data file in the "CMSA Loan
Periodic Update File" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "CMSA Loan Periodic Update File" available as of the Closing
Date on the CMSA website, as is reasonably acceptable to the Master Servicer,
the Paying Agent and the Trustee.
"CMSA Loan Setup File": The data file in the "CMSA Loan Setup File"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA Loan Setup File" available as of the Closing Date on the CMSA website, is
reasonably acceptable to the Master Servicer and the Paying Agent.
"CMSA NOI Adjustment Worksheet": The worksheet in the "NOI
Adjustment Worksheet" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "CMSA NOI Adjustment Worksheet" available as of the Closing Date
on the CMSA website, is reasonably acceptable to the Master Servicer or the
Special Servicer, as applicable.
"CMSA Operating Statement Analysis Report": The monthly report in
the "Operating Statement Analysis Report" format substantially in the form of
and containing the information called for therein for the Mortgage Loans, or
such other form for the presentation of such information as may be approved from
time to time by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "CMSA Operating Statement
Analysis Report" available as of the Closing Date on the CMSA website, is
reasonably acceptable to the Master Servicer or the Special Servicer, as
applicable.
"CMSA Property File": The data file in the "CMSA Property File"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA Property File" available as of the Closing Date on the CMSA website, is
reasonably acceptable to the Master Servicer or the Special Servicer, as
applicable.
"CMSA Reconciliation of Funds Report": The monthly report in the
"Reconciliation of Funds" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "Reconciliation of Funds" available as of the Closing Date on
the CMSA website, is reasonably acceptable to the Paying Agent.
"CMSA REO Status Report": The report in the "REO Status Report"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA REO Status Report" available as of the Closing Date on the CMSA website,
is reasonably acceptable to the Master Servicer or the Special Servicer, as
applicable.
"CMSA Servicer Watch List and Portfolio Review Guidelines": As of
each Determination Date a report, including and identifying each Non-Specially
Serviced Mortgage Loan satisfying the "CMSA Portfolio Review Guidelines"
approved from time to time by the CMSA in the "CSMA Master Servicer Watch List"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, or such other form (including other portfolio
review guidelines) for the presentation of such information as may be approved
from time to time by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "CMSA Servicer Watch List"
available as of the Closing Date on the CMSA website, is reasonably acceptable
to the Master Servicer.
"CMSA Special Servicer Loan File": The data file in the "CMSA
Special Servicer Loan File" format substantially in the form of and containing
the information called for therein for the Mortgage Loans, or such other form
for the presentation of such information as may be approved from time to time by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "CMSA Special Servicer Loan File" available as of the Closing
Date on the CMSA website, is reasonably acceptable to the Special Servicer.
"Code": The Internal Revenue Code of 1986, as amended from time to
time, and applicable final or temporary regulations of the U.S. Department of
the Treasury issued pursuant thereto.
"Collateral Support Deficit": As defined in Section 4.04.
"Commission": The Securities and Exchange Commission.
"Companion Distribution Account": With respect to the Companion
Loans (other than the Universal Hotel Portfolio Companion Loan), the separate
account created and maintained by the Companion Paying Agent pursuant to Section
3.04(b) and held on behalf of the Companion Holders, which shall be entitled
"GMAC Commercial Mortgage Corporation, as Companion Paying Agent for the
Companion Holders of the Companion Loans, relating to the X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., Commercial Mortgage Pass Through
Certificates, Series 2005-LDP3." The Companion Distribution Account shall not be
an asset of the Trust Fund, but instead shall be held by the Companion Paying
Agent on behalf of the Companion Holders. Any such account shall be an Eligible
Account and may be a subaccount of the Certificate Account.
"Companion Holder": Each of the holders of the Companion Loans.
"Companion Loan": Each of the Companion Loans as defined in the
Preliminary Statement.
"Companion Paying Agent": The Master Servicer in its role as
Companion Paying Agent appointed pursuant to Section 3.30.
"Companion Register": The register maintained by the Companion
Paying Agent pursuant to Section 3.31.
"Compensating Interest Payments": With respect to each Mortgage Loan
(or REO Loan), an amount as of any Distribution Date equal to the lesser of (i)
the aggregate amount of Prepayment Interest Shortfalls incurred in connection
with voluntary principal prepayments received in respect of the Mortgage Loans
(other than a Specially Serviced Mortgage Loan or a Mortgage Loan on which the
Special Servicer allowed a prepayment on a date other than the applicable Due
Date), (ii) the aggregate of (A) that portion of Servicing Fees for such
Distribution Date that is, in the case of each and every Mortgage Loan and REO
Loan for which such Servicing Fees are being paid for such Due Period,
calculated at 0.01% per annum, and (B) all Prepayment Interest Excesses received
in respect of the Mortgage Loans for the related Distribution Date and (C) to
the extent earned solely on principal prepayments, Net Investment Earnings
received by the Master Servicer during such Due Period with respect to the
Mortgage Loans and related Companion Loan related to such Prepayment Interest
Shortfalls. However, if a Prepayment Interest Shortfall occurs as a result of
the Master Servicer's allowing the related Mortgagor to deviate from the terms
of the related Mortgage Loan documents regarding Principal Prepayments (other
than (X) subsequent to a default under the related Mortgage Loan documents, (Y)
pursuant to applicable law or a court order, or (Z) at the request or with the
consent of the Directing Certificateholder), then, for purposes of calculating
the Compensating Interest Payment for the related Distribution Date, the amount
in clause (ii) above shall be the aggregate of (1) all Servicing Fees for such
Due Period, (2) all Prepayment Interest Excesses and (3) to the extent earned
solely on Principal Prepayments, Net Investment Earnings received by the Master
Servicer during such Due Period with respect to the Mortgage Loan subject to
such Principal Prepayment. In no event will the rights of the Certificateholders
to offset the aggregate Prepayment Interest Shortfalls be cumulative.
"Component": Each of Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx
XX-0-0, Component XX-0-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx
XX-0X-0, Component XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Component
XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Component XA-1A-10, Component
XA-1A-11, Component XA-1A-12, Component XA-1A-13, Component XX-0X-00, Xxxxxxxxx
XX-0X-00, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XX-0-0, Xxxxxxxxx
XX-0-0, Xxxxxxxxx XX-0-0, Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0,
Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XX-0X-0,
Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X, Component XA-SB-1,
Component XA-SB-2, Component XA-SB-3, Component XA-SB-4, Component XA-SB-5,
Component XA-SB-6, Component XA-J, Component XB, Component XC, Component XD-1,
Component XD-2, Component XD-3, Component XD-4, Component XE-1, Component XE-2,
Component XF-1, Component XF-2, Component XF-3, Component XG-1, Component XG-2,
Component XH-1, Component XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx XX, Component XK-1,
Component XK-2, Component XL, Component XM, Component XN, Component XNR and
Component XO.
"Component Notional Amount": With respect to each Component and any
date of determination, an amount equal to the then Lower-Tier Principal Amount
of its Related Uncertificated Lower-Tier Interest.
"Component XA-1-1": One of the 65 components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-1-1 Uncertificated Interest as of
any date of determination.
"Component XA-1-2": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1-2 Uncertificated Interest as of any date of determination.
"Component XA-1-3": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1-3 Uncertificated Interest as of any date of determination.
"Component XA-1-4": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1-4 Uncertificated Interest as of any date of determination.
"Component XA-1A-1": One of the 65 components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-1A-1 Uncertificated Interest as of
any date of determination.
"Component XA-1A-2": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-2 Uncertificated Interest as of any date of determination.
"Component XA-1A-3": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-3 Uncertificated Interest as of any date of determination.
"Component XA-1A-4": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-4 Uncertificated Interest as of any date of determination.
"Component XA-1A-5": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-5 Uncertificated Interest as of any date of determination.
"Component XA-1A-6": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-6 Uncertificated Interest as of any date of determination.
"Component XA-1A-7": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-7 Uncertificated Interest as of any date of determination.
"Component XA-1A-8": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-8 Uncertificated Interest as of any date of determination.
"Component XA-1A-9": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-9 Uncertificated Interest as of any date of determination.
"Component XA-1A-10": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-10 Uncertificated Interest as of any date of determination.
"Component XA-1A-11": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-11 Uncertificated Interest as of any date of determination.
"Component XA-1A-12": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-12 Uncertificated Interest as of any date of determination.
"Component XA-1A-13": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-13 Uncertificated Interest as of any date of determination.
"Component XA-1A-14": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-14 Uncertificated Interest as of any date of determination.
"Component XA-1A-15": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-15 Uncertificated Interest as of any date of determination.
"Component XA-2-1": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-2-1 Uncertificated Interest as of any date of determination.
"Component XA-2-2": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LA-2-2 Uncertificated Interest as of any date of determination.
"Component XA-2-3": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LA-2-3 Uncertificated Interest as of any date of determination.
"Component XA-2-4": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LA-2-4 Uncertificated Interest as of any date of determination.
"Component XA-3-1": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-3-1 Uncertificated Interest as of any date of determination.
"Component XA-3-2": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-3-2 Uncertificated Interest as of any date of determination.
"Component XA-3-3": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-3-3 Uncertificated Interest as of any date of determination.
"Component XA-3-4": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-3-4 Uncertificated Interest as of any date of determination.
"Component XA-3-5": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-3-5 Uncertificated Interest as of any date of determination.
"Component XA-3-6": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-3-6 Uncertificated Interest as of any date of determination.
"Component XA-3-7": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-3-7 Uncertificated Interest as of any date of determination.
"Component XA-4A-1": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-4A-1 Uncertificated Interest as of any date of determination.
"Component XA-4A-2": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-4A-2 Uncertificated Interest as of any date of determination.
"Component XA-4A-3": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-4A-3 Uncertificated Interest as of any date of determination.
"Component XA-4B": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-4B Uncertificated Interest as of any date of determination.
"Component XA-J": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-J Uncertificated Interest as of any date of determination.
"Component XA-SB-1": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-SB-1 Uncertificated Interest as of any date of determination.
"Component XA-SB-2": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-SB-2 Uncertificated Interest as of any date of determination.
"Component XA-SB-3": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-SB-3 Uncertificated Interest as of any date of determination.
"Component XA-SB-4": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-SB-4 Uncertificated Interest as of any date of determination.
"Component XA-SB-5": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-SB-5 Uncertificated Interest as of any date of determination.
"Component XA-SB-6": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-SB-6 Uncertificated Interest as of any date of determination.
"Component XB": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LB Uncertificated Interest as of any date of determination.
"Component XC": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LC Uncertificated Interest as of any date of determination.
"Component XD-1": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LD-1 Uncertificated Interest as of any date of determination.
"Component XD-2": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LD-2 Uncertificated Interest as of any date of determination.
"Component XD-3": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LD-3 Uncertificated Interest as of any date of determination.
"Component XD-4": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LD-4 Uncertificated Interest as of any date of determination.
"Component XE-1": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LE-1 Uncertificated Interest as of any date of determination.
"Component XE-2": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LE-2 Uncertificated Interest as of any date of determination.
"Component XF-1": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LF-1 Uncertificated Interest as of any date of determination.
"Component XF-2": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LF-2 Uncertificated Interest as of any date of determination.
"Component XF-3": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LF-3 Uncertificated Interest as of any date of determination.
"Component XG-1": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LG-1 Uncertificated Interest as of any date of determination.
"Component XG-2": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LG-2 Uncertificated Interest as of any date of determination.
"Component XH-1": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LH-1 Uncertificated Interest as of any date of determination.
"Component XH-2": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LH-2 Uncertificated Interest as of any date of determination.
"Component XH-3": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LH-3 Uncertificated Interest as of any date of determination.
"Component XJ": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LJ Uncertificated Interest as of any date of determination.
"Component XK-1": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LK-1 Uncertificated Interest as of any date of determination.
"Component XK-2": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LK-2 Uncertificated Interest as of any date of determination.
"Component XL": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LL Uncertificated Interest as of any date of determination.
"Component XM": One of the 65 components of the Class X-1
Certificates and one of the 59 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LM Uncertificated Interest as of any date of determination.
"Component XN": One of the 65 components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LNR Uncertificated Interest as of any
date of determination.
"Component XNR": One of the 65 components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LNR Uncertificated Interest as of any
date of determination.
"Component XO": One of the 65 components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LO Uncertificated Interest as of any
date of determination.
"Controlling Class": As of any date of determination, the most
subordinate Class of Regular Certificates (other than the Class X Certificates)
then outstanding that has a then aggregate Certificate Balance at least equal to
25% of the Original Certificate Balance of such Class of Certificates. As of the
Closing Date, the Controlling Class will be the Class NR Certificates.
"Controlling Class Certificateholder's Option Period": As defined in
Section 3.18(a)(ii).
"Controlling Class Certificateholders": Each Holder (or Certificate
Owner, if applicable) of a Certificate of the Controlling Class as certified by
the Certificate Registrar to the Trustee from time to time by such Holder (or
Certificate Owner).
"Controlling Class Option Holder": As defined in Section 3.18(a)(i).
"Corporate Trust Office": The 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 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
00000, Attention: Corporate Trust Services (CMBS), X.X. Xxxxxx Xxxxx Commercial
Mortgage Securities Corp., Series 2005-LDP3 (telecopy number (000) 000-0000).
"Corrected Mortgage Loan": Any Specially Serviced Mortgage Loan that
has become current and remained current for three consecutive Monthly Payments
(for such purposes taking into account any modification or amendment of such
Mortgage Loan or Companion Loan, whether by a consensual modification or in
connection with a bankruptcy, insolvency or similar proceeding involving the
Mortgagor), and (provided, that no additional default is foreseeable in the
reasonable judgment of the Special Servicer and no other event or circumstance
exists that causes such Mortgage Loan or Companion Loan to otherwise constitute
a Specially Serviced Mortgage Loan) the servicing of which the Special Servicer
has returned to the Master Servicer pursuant to Section 3.21(a).
"Crossed Group": With respect to any Mortgage Loan, such Mortgage
Loan and all other Mortgage Loans that are cross-collateralized and
cross-defaulted with such Mortgage Loan.
"Crossed Loan": A Mortgage Loan that is cross-collateralized and
cross-defaulted with one or more other Mortgage Loans.
"Crossed Loan Repurchase Criteria": (i) The weighted average Debt
Service Coverage Ratio for all remaining related Crossed Loans for the four most
recent calendar quarters preceding the repurchase or substitution shall not be
less than the greater of (a) the Debt Service Coverage Ratio for all such
related Crossed Loans, including the affected Crossed Loan, for the four most
recent calendar quarters preceding the repurchase or substitution, and (b)
1.25x, (ii) the weighted average LTV Ratio for all remaining related Crossed
Loans determined as of the Cut-off Date based upon an Appraisal obtained by the
Special Servicer at the expense of the related Mortgage Loan Seller shall not be
greater than the lesser of (a) the weighted average LTV Ratio for all such
related Crossed Loans, including the affected Crossed Loan, determined as of the
Cut-off Date based upon an Appraisal obtained by the Special Servicer at the
expense of the related Mortgage Loan Seller and (b) 75%, (iii) the Mortgage Loan
Seller, at its expense, shall have furnished the Trustee with an Opinion of
Counsel that any modification relating to the repurchase or substitution of a
Crossed Loan shall not cause an Adverse REMIC Event, (iv) the related Mortgage
Loan Seller either (A) causes the related Crossed Loans to become not
cross-collateralized and cross-defaulted with each other prior to such
repurchase or substitution or (B) otherwise forbears from exercising enforcement
rights against any Crossed Loan remaining in the Trust Fund and (v) the
Directing Certificateholder shall have consented to the repurchase or
substitution of the affected Crossed Loan, which consent shall not be
unreasonably withheld.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor, any of the Mortgage Loan Sellers or an
Affiliate of any of them. The Trustee shall be the initial Custodian.
"Cut-off Date": With respect to each Mortgage Loan, the related Due
Date of the Mortgage Loan in August 2005, or, with respect to those Mortgage
Loans that were originated in August 2005 and have their first Due Date in
September 2005 or October 2005, the origination date of such Mortgage Loan.
"Cut-off Date Principal Balance": With respect to any Mortgage Loan
or Companion Loan, the outstanding principal balance of such Mortgage Loan or
Companion Loan, as the case may be, as of the Cut-off Date, after application of
all payments of principal due on or before such date, whether or not received.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan for
any twelve month period covered by an annual operating statement for the related
Mortgaged Property, the ratio of (i) Net Operating Income produced by the
related Mortgaged Property during such period to (ii) the aggregate amount of
Monthly Payments (other than any Balloon Payment) due under such Mortgage Loan
during such period; provided, that with respect to the Mortgage Loans indicated
on Schedule 2, which pay interest only for a specified period of time set forth
in the related Mortgage Loan documents and then pay principal and interest, the
related Monthly Payment will be calculated (for purposes of this definition
only) to include interest and principal (based on the remaining amortization
term indicated in the Mortgage Loan Schedule).
"Default Interest": With respect to any Mortgage Loan or Companion
Loan, all interest accrued in respect of such Mortgage Loan or Companion Loan
during such Due Period provided for in the related Mortgage Note or Mortgage as
a result of a default (exclusive of late payment charges) that is in excess of
interest at the related Mortgage Rate accrued on the unpaid principal balance of
such Mortgage Loan or Companion Loan outstanding from time to time.
"Defaulted Mortgage Loan": A Mortgage Loan (i) that is delinquent at
least sixty days in respect of its Monthly Payments or more than thirty days (or
sixty days with respect to the circumstances described in clause (ii) of the
definition of Servicing Transfer Event) delinquent in respect of its Balloon
Payment, if any, in either case such delinquency to be determined without giving
effect to any grace period permitted by the related Mortgage or Mortgage Note
and without regard to any acceleration of payments under the related Mortgage
and Mortgage Note or (ii) as to which the Master Servicer or Special Servicer
has, by written notice to the related Mortgagor, accelerated the maturity of the
indebtedness evidenced by the related Mortgage Note. For the avoidance of doubt,
a defaulted Companion Loan does not constitute a "Defaulted Mortgage Loan".
"Defaulting Party": As defined in Section 7.01(b).
"Defeasance Accounts": As defined in Section 3.20(k).
"Defect": As defined in Section 2.02(f).
"Deficient Valuation": With respect to any Mortgage Loan, a
valuation by a court of competent jurisdiction of the Mortgaged Property in an
amount less than the then outstanding principal balance of the Mortgage Loan,
which valuation results from a proceeding initiated under the Bankruptcy Code.
"Definitive Certificate": Any Certificate in definitive, fully
registered form without interest coupons.
"Denomination": As defined in Section 5.01(a).
"Depositor": X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
a Delaware corporation, or its successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository for purposes
of registering those Certificates that are to be Book-Entry Certificates, is
Cede & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of New
York and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Depository Rules": As defined in Section 5.02(b).
"Determination Date": With respect to any Distribution Date, the
fourth Business Day preceding such Distribution Date.
"Determination Information": As defined in Section 3.18(a)(i).
"Directing Certificateholder": The Controlling Class
Certificateholder (or a representative thereof identified to the Master
Servicer, the Special Servicer, the Trustee and the Paying Agent) selected by
more than 50% of the Controlling Class Certificateholders, by Certificate
Balance, as certified by the Certificate Registrar from time to time; provided,
however, that (i) absent such selection, or (ii) until a Directing
Certificateholder is so selected or (iii) upon receipt of a notice from a
majority of the Controlling Class Certificateholders, by Certificate Balance,
that a Directing Certificateholder is no longer designated, the Controlling
Class Certificateholder that owns the largest aggregate Certificate Balance of
the Controlling Class will be the Directing Certificateholder which will
initially be Cadim TACH inc.
"Directly Operate": With respect to any REO Property, the furnishing
or rendering of services to the tenants thereof, that are not customarily
provided to tenants in connection with the rental of space "for occupancy only"
within the meaning of Treasury Regulations Section 1.512(b)-1(c)(5), the
management or operation of such REO Property, the holding of such REO Property
primarily for sale to customers, the use of such REO Property in a trade or
business conducted by the Trust Fund or on behalf of a Companion Holder or the
performance of any construction work on the REO Property (other than the
completion of a building or improvement, where more than 10% of the construction
of such building or improvement was completed before default became imminent),
other than through an Independent Contractor; provided, however, that an REO
Property shall not be considered to be Directly Operated solely because the
Trustee (or the Special Servicer on behalf of the Trustee) establishes rental
terms, chooses tenants, enters into or renews leases, deals with taxes and
insurance or makes decisions as to repairs or capital expenditures with respect
to such REO Property or takes other actions consistent with Treasury Regulations
Section 1.856-4(b)(5)(ii).
"Disqualified Organization": Any of (i) the United States, any State
or political subdivision thereof, any possession of the United States or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and a
majority of its board of directors is not selected by such governmental unit),
(ii) a foreign government, any international organization or any agency or
instrumentality of any of the foregoing, (iii) any organization (other than
certain farmers' cooperatives described in Section 521 of the Code) which is
exempt from the tax imposed by Chapter 1 of the Code (including the tax imposed
by Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381(a)(2)(C) of the
Code and (v) any other Person so designated by the Paying Agent based upon an
Opinion of Counsel as provided to the Paying Agent (at no expense to the Paying
Agent) that the holding of an Ownership Interest in a Residual Certificate by
such Person may cause the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or any Person having an Ownership Interest in any Class of
Certificates (other than such Person) to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the Transfer
of an Ownership Interest in a Residual Certificate to such Person. The terms
"United States," "State" and "international organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions.
"Distributable Certificate Interest": With respect to any
Distribution Date, as to any Class of Regular Certificates, the Accrued
Certificate Interest in respect of such Class of Regular Certificates, as
applicable, for such Distribution Date, reduced (to not less than zero) by any
allocations to such Class of Certificates (other than in the case of the Class X
Certificates), as applicable, of (i) the product of (a) any Net Aggregate
Prepayment Interest Shortfall for such Distribution Date, multiplied by (b) a
fraction, expressed as a decimal, the numerator of which is the Accrued
Certificate Interest in respect of such Class of Certificates for such
Distribution Date, and the denominator of which is the aggregate Accrued
Certificate Interest in respect of all the Classes of Regular Certificates
(other than the Class X Certificates) for such Distribution Date, and (ii) any
Certificate Deferred Interest for such Distribution Date allocated to such Class
of Certificates pursuant to Section 4.06(a).
"Distribution Accounts": Collectively, the Upper-Tier Distribution
Account, the Lower-Tier Distribution Account and the Excess Interest
Distribution Account, all of which may be subaccounts of a single Eligible
Account.
"Distribution Date": The 15th day of each month, or, if such 15th
day is not a Business Day, on the next succeeding Business Day, beginning in
September 2005.
"DTC": As defined in Section 5.03(d).
"Due Date": With respect to (i) any Mortgage Loan or Companion Loan,
on or prior to its Maturity Date, the day of the month set forth in the related
Mortgage Note on which each Monthly Payment thereon is scheduled to be first
due, (ii) any Mortgage Loan or Companion Loan after the Maturity Date therefor,
the day of the month set forth in the related Mortgage Note on which each
Monthly Payment on such Mortgage Loan or Companion Loan had been scheduled to be
first due, and (iii) any REO Loan, the day of the month set forth in the related
Mortgage Note on which each Monthly Payment on the related Mortgage Loan or
Companion Loan had been scheduled to be first due.
"Due Period": With respect to any Distribution Date and any Mortgage
Loan or Companion Loan, the period commencing on the day immediately succeeding
the Due Date for such Mortgage Loan or Companion Loan occurring in the month
preceding the month in which such Distribution Date occurs and ending on and
including the Due Date for such Mortgage Loan or Companion Loan occurring in the
month in which such Distribution Date occurs; provided, that the first Due
Period with respect to Mortgage Loans with their first Due Date in September
2005 shall begin on the Cut-off Date of such Mortgage Loan. Notwithstanding the
foregoing, in the event that the last day of a Due Period (or applicable grace
period) is not a Business Day, any payments received with respect to the
Mortgage Loans or Companion Loan relating to such Due Period on the Business Day
immediately following such day shall be deemed to have been received during such
Due Period and not during any other Due Period.
"Eligible Account": Either (i) a segregated account or accounts
maintained with a federal or state chartered depository institution or trust
company (including the Trustee), (A) the long-term unsecured debt obligations of
which are rated at least "A+" by S&P, if the deposits are to be held in such
account for 30 days or more, and the short-term debt obligations of which have a
short-term rating of not less than "A-1" by S&P, if the deposits are to be held
in such account for less than 30 days, (B) the long-term unsecured debt
obligations of which are rated at least "Aa3" by Moody's, if the deposits are to
be held in such account for 30 days or more, and the short-term debt obligations
of which have a short-term rating of not less than "P-1" from Moody's, if the
deposits are to be held in such account for less than 30 days and (C) such other
account or accounts with respect to which each of the Rating Agencies shall have
confirmed in writing that the then current rating assigned to any of the
Certificates will not be qualified, downgraded or withdrawn by reason thereof,
or (ii) a segregated trust account or accounts maintained with the corporate
trust department of a federal or state chartered depository institution or trust
company that, in either case, has corporate trust powers, acting in its
fiduciary capacity, provided, that any state chartered depository institution or
trust company is subject to regulation regarding fiduciary funds substantially
similar to 12 C.F.R. ss. 9.10(b). Eligible Accounts may bear interest. No
Eligible Account shall be evidenced by a certificate of deposit, passbook or
other similar instrument.
"Eligible Investor": Either (i) a Qualified Institutional Buyer that
is purchasing for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the offer, sale or transfer is
being made in reliance on Rule 144A or (ii) an Institutional Accredited
Investor.
"Environmental Assessment": A "Phase I assessment" as described in,
and meeting the criteria of, the American Society of Testing Materials Standard
Sections 1527-99 or any successor thereto published by the American Society of
Testing Materials.
"Environmental Indemnity Agreement": With respect to any Mortgage
Loan, any agreement between the Mortgagor (or a guarantor thereof) and the
originator of such Mortgage Loan relating to the Mortgagor's obligation to
remediate or monitor or indemnify for any environmental problems relating to the
related Mortgaged Property.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Prohibited Holder": As defined in Section 5.02(c)(i)(A).
"ERISA Restricted Certificate": Any Class J, Class K, Class L, Class
M, Class N, Class O or Class NR Certificate; provided, that any such
Certificate: (a) will cease to be considered an ERISA Restricted Certificate and
(b) will cease to be subject to the transfer restrictions contained in Section
5.02(c) if, as of the date of a proposed transfer of such Certificate, either
(i) it is rated in one of the four highest generic ratings categories by a
Rating Agency or (ii) relevant provisions of ERISA would permit the transfer of
such Certificate to a Plan.
"Escrow Payment": Any payment received by the Master Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums, ground lease
rents and similar items in respect of the related Mortgaged Property, including
amounts for deposit to any reserve account.
"Euroclear": Euroclear Bank societe anonyme or any successor
thereto.
"Event of Default": One or more of the events described in Section
7.01(a).
"Excess Interest": With respect to each of the Mortgage Loans
indicated on the Mortgage Loan Schedule as having a Revised Rate, interest
accrued on such Mortgage Loan after the Anticipated Repayment Date allocable to
the Excess Rate, including all interest accrued thereon. The Excess Interest
shall not be an asset of either the Lower-Tier REMIC or the Upper-Tier REMIC
formed hereunder.
"Excess Interest Distribution Account": The trust account or
accounts created and maintained as a separate account or accounts (or as a
subaccount of the Distribution Account) by the Paying Agent pursuant to Section
3.04(c), which shall be entitled "LaSalle Bank National Association, as Paying
Agent, in trust for the registered Holders of X.X. Xxxxxx Xxxxx Commercial
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2005-LDP3, Excess Interest Distribution Account," and which must be an Eligible
Account (or a subaccount of an Eligible Account). The Excess Interest
Distribution Account shall not be an asset of either the Lower-Tier REMIC or the
Upper-Tier REMIC formed hereunder.
"Excess Rate": With respect to each of the Mortgage Loans indicated
on the Mortgage Loan Schedule as having a Revised Rate, the excess of (i) the
applicable Revised Rate over (ii) the applicable Mortgage Rate, each as set
forth in the Mortgage Loan Schedule.
"Exchange Act": The Securities Exchange Act of 1934, as amended from
time to time.
"Xxxxxx Mae": Federal National Mortgage Association or any successor
thereto.
"FDIC": Federal Deposit Insurance Corporation or any successor
thereto.
"Final Recovery Determination": A reasonable determination by the
Special Servicer, in consultation with the Directing Certificateholder, with
respect to any Defaulted Mortgage Loan or Corrected Mortgage Loan or REO
Property (other than a Mortgage Loan or REO Property, as the case may be, that
was purchased by any of the Mortgage Loan Sellers pursuant to Section 6 of the
applicable Mortgage Loan Purchase Agreement, the Controlling Class Option
Holder, the applicable Companion Holder or the Special Servicer pursuant to
Section 3.18(b), any mezzanine lender pursuant to Section 3.18(e) or the Master
Servicer, Special Servicer, the Holders of the Controlling Class, or the Holders
of the Class LR Certificates pursuant to Section 9.01) that there has been a
recovery of all Insurance and Condemnation Proceeds, Liquidation Proceeds, REO
Revenue and other payments or recoveries that, in the Special Servicer's
judgment, which judgment was exercised without regard to any obligation of the
Special Servicer to make payments from its own funds pursuant to Section
3.07(b), will ultimately be recoverable.
"FIRREA": The Financial Institutions Reform, Recovery, and
Enforcement Act of 1989, as it may be amended from time to time.
"Xxxxxxx Mac": Federal Home Loan Mortgage Corporation or any
successor thereto.
"Gain-on-Sale Proceeds": With respect to any Mortgage Loan the
excess of (i) Liquidation Proceeds of the Mortgage Loan or related REO Property
net of any related Liquidation Expenses, unreimbursed Advances, Liquidation
Fees, unreimbursed interest on Advances, unpaid Servicing Fees, and unpaid
Special Servicing Fees and additional Trust Fund expenses over (ii) the Purchase
Price for such Mortgage Loan on the date on which such Liquidation Proceeds were
received.
"Gain-on-Sale Reserve Account": A custodial account or accounts (or
subaccount of the Distribution Account) created and maintained by the Paying
Agent, pursuant to Section 3.04(d) on behalf of the Trustee in trust for the
Certificateholders, which shall be entitled "LaSalle Bank National Association,
as Paying Agent, in trust for the registered Holders of X.X. Xxxxxx Chase
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP3, Gain-on-Sale Reserve Account." Any such account
shall be an Eligible Account or a subaccount of an Eligible Account.
"Grantor Trust": A segregated asset pool within the Trust Fund
consisting of the Excess Interest, the Excess Interest Distribution Account and
the proceeds thereof, beneficial ownership of which is represented by the Class
S Certificates.
"Ground Lease": The ground lease pursuant to which any Mortgagor
holds a leasehold interest in the related Mortgaged Property and any estoppels
or other agreements executed and delivered by the ground lessor in favor of the
lender under the Mortgage Loan.
"Group 1 Mortgage Loan" shall mean any Mortgage Loan identified on
the Mortgage Loan Schedule as belonging to Loan Group 1.
"Group 2 Mortgage Loan" shall mean any Mortgage Loan identified on
the Mortgage Loan Schedule as belonging to Loan Group 2.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes or substances, including, without limitation, those so
identified pursuant to CERCLA or any other federal, state or local environmental
related laws and regulations, and specifically including, without limitation,
asbestos and asbestos-containing materials, polychlorinated biphenyls, radon
gas, petroleum and petroleum products, urea formaldehyde and any substances
classified as being "in inventory," "usable work in process" or similar
classification which would, if classified as unusable, be included in the
foregoing definition.
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Trustee, the Paying Agent, the
Depositor, the Master Servicer, the Special Servicer, the Directing
Certificateholder and any Affiliates thereof, (ii) does not have any material
direct financial interest in or any material indirect financial interest in any
of the Trustee, the Paying Agent, the Depositor, the Master Servicer, the
Special Servicer, the Directing Certificateholder and any Affiliate thereof and
(iii) is not connected with the Trustee, the Paying Agent, the Depositor, the
Master Servicer, the Special Servicer, the Directing Certificateholder 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 Trustee, the Paying Agent,
the Depositor, the Master Servicer, the Special Servicer, the Directing
Certificateholder or any Affiliate thereof merely because such Person is the
beneficial owner of 1% or less of any Class of securities issued by the Trustee,
the Paying Agent, the Depositor, the Master Servicer, the Special Servicer, the
Directing Certificateholder or any Affiliate thereof, as the case may be,
provided, that such beneficial ownership constitutes less than 1% of the total
assets of such Person.
"Independent Contractor": Either (i) any Person that would be an
"independent contractor" with respect to the Trust within the meaning of Section
856(d)(3) of the Code if the Trust were a real estate investment trust (except
that the ownership test set forth in that Section shall be considered to be met
by any Person that owns, directly or indirectly, 35% or more of any Class of
Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall be at no expense to the Trustee, the
Paying Agent, the Master Servicer, any Companion Holder or the Trust, delivered
to the Trustee, the Paying Agent, any Companion Holder and the Master Servicer),
so long as the Trust does not receive or derive any income from such Person and
provided that the relationship between such Person and the Trust is at arm's
length, all within the meaning of Treasury Regulations Section 1.856-4(b)(5)
(except that the Master Servicer or the Special Servicer shall not be considered
to be an Independent Contractor under the definition in this clause (i) unless
an Opinion of Counsel has been delivered to the Trustee to that effect) or (ii)
any other Person (including the Master Servicer and the Special Servicer) upon
receipt by the Trustee, the Paying Agent and the Master Servicer of an Opinion
of Counsel, which shall be at no expense to the Trustee, the Paying Agent, the
Master Servicer or the Trust Fund, to the effect that the taking of any action
in respect of any REO Property by such Person, subject to any conditions therein
specified, that is otherwise herein contemplated to be taken by an Independent
Contractor will not cause such REO Property to cease to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code or cause any
income realized in respect of such REO Property to fail to qualify as Rents from
Real Property.
"Initial Purchasers": X.X. Xxxxxx Securities Inc. and Nomura
Securities International, Inc.
"Initial Sub-Servicer": With respect to each Mortgage Loan that is
subject to a Sub-Servicing Agreement with the Master Servicer as of the Closing
Date, the Sub-Servicer under any such Sub-Servicing Agreement.
"Initial Sub-Servicing Agreement": Any Sub-Servicing Agreement in
effect as of the Closing Date.
"Institutional Accredited Investor": An entity meeting the
requirements of Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated
under the Act.
"Insurance and Condemnation Proceeds": All proceeds paid under any
Insurance Policy or in connection with the full or partial condemnation of a
Mortgaged Property, in either case, to the extent such proceeds are not applied
to the restoration of the related Mortgaged Property or released to the
Mortgagor or any tenants or ground lessors, in either case, in accordance with
the Servicing Standards (and in the case of the Universal Hotel Portfolio
Mortgage Loan or any AB Mortgage Loan, to the extent any portion of such
proceeds are received by the Paying Agent in connection with such AB Mortgage
Loan, pursuant to the allocations set forth in the related Intercreditor
Agreement).
"Insurance Policy": With respect to any Mortgage Loan, any hazard
insurance policy, flood insurance policy, title policy or other insurance policy
that is maintained from time to time in respect of such Mortgage Loan or the
related Mortgaged Property.
"Intercreditor Agreements": Each of the Universal Hotel Portfolio
Intercreditor Agreement, the Lowe's Aliso Viejo Intercreditor Agreement and the
0000 Xxxxxxxx Xxxxxxxxx Intercreditor Agreement.
"Interest Accrual Period": With respect to any Class of Regular
Certificates or the Uncertificated Lower-Tier Interests and any Distribution
Date, the period beginning on the first day of the calendar month preceding the
calendar month in which the related Distribution Date occurs and ending on the
last day of the calendar month preceding the calendar month in which such
Distribution Date occurs, calculated assuming that each month has 30 days and
each year has 360 days.
"Interest Distribution Amount": With respect to any Class of Regular
Certificates for any Distribution Date, an amount equal to the sum of the
Distributable Certificate Interest and the Class Unpaid Interest Shortfall with
respect to such Class of Regular Certificates for such Distribution Date.
"Interest Reserve Account": The trust account or subaccount of the
Distribution Account created and maintained by the Paying Agent pursuant to
Section 3.25 in the name of "LaSalle Bank National Association, as Paying Agent,
in trust for the registered holders of X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
0000-XXX0, Xxxxxxxx Xxxxxxx Account," into which the amounts set forth in
Section 3.25 shall be deposited directly and which must be an Eligible Account
or subaccount of an Eligible Account.
"Interest Reserve Loan": Each Actual/360 Mortgage Loan.
"Interested Person": The Depositor, the Master Servicer, the Special
Servicer, any Independent Contractor engaged by the Special Servicer, any Holder
of a Certificate, each Companion Holder (but only with respect to the related AB
Mortgage Loan) or any Affiliate of any such Person.
"Investment Account": As defined in Section 3.06(a).
"Investment Representation Letter": As defined in Section 5.02(b).
"JPMorgan": JPMorgan Chase Bank, National Association, a banking
association organized under the laws of the United States, or its successor in
interest.
"Late Collections": With respect to any Mortgage Loan or Companion
Loan, all amounts received thereon prior to the related Determination Date,
whether as payments, Insurance and Condemnation Proceeds, Liquidation Proceeds
or otherwise, which represent late payments or collections of principal or
interest due in respect of such Mortgage Loan or Companion Loan (without regard
to any acceleration of amounts due thereunder by reason of default) on a Due
Date prior to the immediately preceding Determination Date and not previously
recovered. With respect to any REO Loan, all amounts received in connection with
the related REO Property prior to the related Determination Date, whether as
Insurance and Condemnation Proceeds, Liquidation Proceeds, REO Revenues or
otherwise, which represent late collections of principal or interest due or
deemed due in respect of such REO Loan or the predecessor Mortgage Loan or
Companion Loan (without regard to any acceleration of amounts due under the
predecessor Mortgage Loan or Companion Loan by reason of default) on a Due Date
prior to the immediately preceding Determination Date and not previously
recovered. The term "Late Collections" shall specifically exclude Penalty
Charges.
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made with respect to such Mortgage Loan; (iii) such Mortgage
Loan is repurchased by the applicable Mortgage Loan Seller pursuant to Section 6
of the related Mortgage Loan Purchase Agreement; (iv) such Mortgage Loan is
purchased by the Controlling Class Option Holder or the Special Servicer
pursuant to Section 3.18(b); (v) such Mortgage Loan is purchased by the Special
Servicer, the Master Servicer, the Holders of the Controlling Class or the
Holders of the Class LR Certificates pursuant to Section 9.01 or acquired by the
Sole Certificateholder in exchange for its Certificates pursuant to Section
9.01; (vi) such Mortgage Loan is purchased by (a) the applicable Companion
Holder pursuant to or as contemplated by Section 3.18(d) or (b) a mezzanine
lender pursuant to the related mezzanine intercreditor agreement; or (vii) such
Mortgage Loan is purchased by the applicable Universal Hotel Portfolio Companion
Loan Noteholder pursuant to the Universal Hotel Portfolio Intercreditor
Agreement. With respect to any REO Property (and the related REO Loan), any of
the following events: (i) a Final Recovery Determination is made with respect to
such REO Property; (ii) such REO Property is purchased by the Master Servicer,
the Special Servicer, the Holders of the Controlling Class or the Holders of the
Class LR Certificates pursuant to Section 9.01; or (iii) such REO Property is
purchased by (a) the applicable Companion Holder pursuant to or as contemplated
by Section 3.18(d) or (b) a mezzanine lender pursuant to the related mezzanine
intercreditor agreement.
"Liquidation Expenses": All customary, reasonable and necessary "out
of pocket" costs and expenses incurred by the Special Servicer in connection
with a liquidation of any Specially Serviced Mortgage Loan or REO Property
pursuant to Section 3.18 (including, without limitation, legal fees and
expenses, committee or referee fees and, if applicable, brokerage commissions
and conveyance taxes).
"Liquidation Fee": A fee payable to the Special Servicer with
respect to each Specially Serviced Mortgage Loan or REO Property as to which the
Special Servicer receives a full or discounted payoff (or an unscheduled partial
payment to the extent such prepayment is required by the Special Servicer as a
condition to a workout) with respect thereto from the related Mortgagor or any
Liquidation Proceeds or Insurance and Condemnation Proceeds with respect to the
related Mortgage Loan, or REO Property (in any case, other than amounts for
which a Workout Fee has been paid, or will be payable), equal to the product of
the Liquidation Fee Rate and the proceeds of such full or discounted payoff or
other unscheduled partial payment or the Liquidation Proceeds or Insurance and
Condemnation Proceeds (net of the related costs and expenses associated with the
related liquidation) related to such liquidated Specially Serviced Mortgage Loan
or REO Property, as the case may be; provided, however, that no Liquidation Fee
shall be payable with respect to any event described in (1) clause (iii)(A) of
the definition of "Liquidation Proceeds" if such purchase occurs within the
first 90 days after the Special Servicer's initial determination of the fair
value of such Specially Serviced Mortgage Loan, (2) clause (iv) of the
definition of "Liquidation Proceeds" if such repurchase occurs within the time
parameters (including any applicable extension period) set forth in this
Agreement and in the related Mortgage Loan Purchase Agreement or, if such
repurchase occurs after such time period, the Mortgage Loan Seller was acting in
good faith to resolve such breach or defect or (3) clause (v) and clause (vi) of
the definition of "Liquidation Proceeds," (except that a Liquidation Fee will be
payable with respect to any purchase by a mezzanine lender or the holder of a
Companion Loan if such purchase does not occur within 90 days following the date
the related Mortgage Loan becomes a Specially Serviced Mortgage Loan).
"Liquidation Fee Rate": With respect to each Specially Serviced
Mortgage Loan and each REO Loan, a rate equal to 1.00%.
"Liquidation Proceeds": Cash amounts received by or paid to the
Master Servicer or the Special Servicer in connection with: (i) the liquidation
(including a payment in full) of a Mortgaged Property or other collateral
constituting security for a Defaulted Mortgage Loan through a 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) the purchase of a Defaulted Mortgage Loan by the Majority Controlling Class
Certificateholder, the Special Servicer or the Master Servicer or any of their
assignees pursuant to Section 3.18(a) or (B) any other sale thereof pursuant to
Section 3.18(c), Section 3.18(e) or Section 3.18(f); (iv) the repurchase of a
Mortgage Loan by the applicable Mortgage Loan Seller pursuant to Section 6 of
the related Mortgage Loan Purchase Agreement; (v) the purchase of a Mortgage
Loan or REO Property by the Holders of the Controlling Class, the Special
Servicer, the Master Servicer or the Holders of the Class LR Certificates
pursuant to Section 9.01 or; (vi) the purchase of a Mortgage Loan or an REO
Property by (a) the Companion Holder pursuant to Section 3.18(d) or (b) any
other mezzanine lender of the related Mortgage Loan or REO Loan.
"Loan Group": Either Loan Group 1 or Loan Group 2.
"Loan Group 1": Collectively, all of the Mortgage Loans that are
Group 1 Mortgage Loans and any successor REO Loans with respect thereto.
"Loan Group 1 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available Distribution Amount
attributable to Loan Group 1 (which shall include, for the first Distribution
Date, the Westlink Shopping Center Deposit Amount).
"Loan Group 1 Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum of (a) the Loan Group 1 Principal
Shortfall for such Distribution Date, (b) that portion, if any, of the Scheduled
Principal Distribution Amount for such Distribution Date attributable to Loan
Group 1, (c) that portion, if any, of the Unscheduled Principal Distribution
Amount for such Distribution Date attributable to Loan Group 1 and (d) with
respect to the first Distribution Date, the Westlink Shopping Center Principal
Deposit Amount; provided, that the Loan Group 1 Principal Distribution Amount
for any Distribution Date shall be reduced by the amount of any reimbursements
of (i) Nonrecoverable Advances plus interest on such Nonrecoverable Advances
that are paid or reimbursed from principal collections on the Group 1 Mortgage
Loans in a period during which such principal collections would have otherwise
been included in the Loan Group 1 Principal Distribution Amount for such
Distribution Date, (ii) Workout-Delayed Reimbursement Amounts that were paid or
reimbursed from principal collections on the Group 1 Mortgage Loans in a period
during which such principal collections would have otherwise been included in
the Loan Group 1 Principal Distribution Amount for such Distribution Date and
(iii) following the reimbursements provided for in clauses (i) and (ii) above,
the excess, if any of (A) the total amount of Nonrecoverable Advances and
Workout-Delayed Reimbursement Amounts, plus interest on such Nonrecoverable
Advances and Workout-Delayed Reimbursement Amounts, that would have been paid or
reimbursed from principal collections on the Group 2 Mortgage Loans as provided
for in clauses (i) and (ii) of the definition of "Loan Group 2 Principal
Distribution Amount" had the Loan Group 2 Principal Distribution Amount been
sufficient to make such reimbursements in full, over (B) the Loan Group 2
Principal Distribution Amount (prior to giving effect to clauses (i), (ii) and
(iii) of the definition of "Loan Group 2 Principal Distribution Amount") for
that Distribution Date (provided further, (I) that, with respect to the amounts
identified in clauses (i) and (ii) above, if any of such amounts reimbursed from
principal collections on the Group 1 Mortgage Loans are subsequently recovered
on the related Mortgage Loan, subject to the application of any recovery to
increase the Loan Group 2 Principal Distribution Amount as required under clause
(II) of the definition of "Loan Group 2 Principal Distribution Amount"), such
recovery will be applied to increase the Loan Group 1 Principal Distribution
Amount for the Distribution Date related to the period in which such recovery
occurs; and (II) that in the case of clause (iii) above, if any of such amounts
reimbursed from principal collections on the Loan Group 2 Mortgage Loans are
subsequently recovered on the related Mortgage Loan, such recovery will first be
applied to increase the Loan Group 1 Principal Distribution Amount up to such
amounts and then to increase the Loan Group 2 Principal Distribution Amount).
"Loan Group 1 Principal Shortfall": With respect to any Distribution
Date, the amount, if any, by which (1) the lesser of (a) the Loan Group 1
Principal Distribution Amount for the prior Distribution Date and (b) the
Certificate Balance of the Class A-1, Class A-2, Class A-3, Class A-4A, Class
A-4B and Class A-SB Certificates, exceeds (2) the aggregate amount distributed
in respect of principal on the Class X-0, Xxxxx X-0, Class X-0, Xxxxx X-0X,
Xxxxx X-0X and Class A-SB Certificates on the prior Distribution Date. There
will be no Loan Group 1 Principal Shortfall on the first Distribution Date.
"Loan Group 2": Collectively, all of the Mortgage Loans that are
Group 2 Mortgage Loans and any successor REO Loans with respect thereto.
"Loan Group 2 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available Distribution Amount
attributable to Loan Group 2.
"Loan Group 2 Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum of (a) the Loan Group 2 Principal
Shortfall for such Distribution Date, (b) that portion, if any, of the Scheduled
Principal Distribution Amount for such Distribution Date attributable to Loan
Group 2 and (c) that portion, if any, of the Unscheduled Principal Distribution
Amount for such Distribution Date attributable to Loan Group 2; provided, that
the Loan Group 2 Principal Distribution Amount for any Distribution Date shall
be reduced by the amount of any reimbursements of (i) Nonrecoverable Advances
plus interest on such Nonrecoverable Advances that are paid or reimbursed from
principal collections on the Group 2 Mortgage Loans in a period during which
such principal collections would have otherwise been included in the Loan Group
2 Principal Distribution Amount for such Distribution Date, (ii) Workout-Delayed
Reimbursement Amounts that were paid or reimbursed from principal collections on
the Group 2 Mortgage Loans in a period during which such principal collections
would have otherwise been included in the Loan Group 2 Principal Distribution
Amount for such Distribution Date and (iii) following the reimbursements
provided for in clauses (i) and (ii) above, the excess, if any of (A) the total
amount of Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts,
plus interest on such Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts, that would have been paid or reimbursed from principal collections on
the Group 1 Mortgage Loans as provided for in clauses (i) and (ii) of the
definition of "Loan Group 1 Principal Distribution Amount" had the Loan Group 1
Principal Distribution Amount been sufficient to make such reimbursements in
full, over (B) the Loan Group 1 Principal Distribution Amount (prior to giving
effect to clauses (i), (ii) and (iii) of the definition of "Loan Group 1
Principal Distribution Amount") for that Distribution Date (provided further,
(I) that, with respect to the amounts identified in clauses (i) and (ii) above,
if any of such amounts reimbursed from principal collections on the Group 2
Mortgage Loans are subsequently recovered on the related Mortgage Loan, subject
to the application of any recovery to increase the Loan Group 1 Principal
Distribution Amount as required under clause (II) of the definition of "Loan
Group 1 Principal Distribution Amount", such recovery will be applied to
increase the Loan Group 2 Principal Distribution Amount for the Distribution
Date related to the period in which such recovery occurs; and (II) that in the
case of clause (iii) above, if any of such amounts reimbursed from principal
collections on the Loan Group 1 Mortgage Loans are subsequently recovered on the
related Mortgage Loan, such recovery will first be applied to increase the Loan
Group 2 Principal Distribution Amount up to such amounts and then to increase
the Loan Group 1 Principal Distribution Amount).
"Loan Group 2 Principal Shortfall": With respect to any Distribution
Date, the amount, if any, by which (1) the lesser of (a) the Loan Group 2
Principal Distribution Amount for the prior Distribution Date and (b) the
Certificate Balance of the Class A-1A Certificates, exceeds (2) the aggregate
amount distributed in respect of principal on the Class A-1A Certificates on the
prior Distribution Date. There will be no Loan Group 2 Principal Shortfall on
the first Distribution Date.
"Loan Pair": Collectively, a Companion Loan and the related AB
Mortgage Loan.
"Lower-Tier Distribution Account": The segregated account, accounts
or sub-accounts created and maintained by the Paying Agent pursuant to Section
3.04(b) in trust for the Certificateholders, which shall be entitled "LaSalle
Bank National Association, as Paying Agent, in trust for the registered Holders
of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 0000-XXX0, Xxxxx-Xxxx Distribution Account."
Any such account, accounts or sub-accounts shall be an Eligible Account.
"Lower-Tier Principal Amount": With respect to any Class of
Uncertificated Lower-Tier Interests, (i) on or prior to the first Distribution
Date, an amount equal to the Original Lower-Tier Principal Amount of such Class
as specified in the Preliminary Statement hereto, and (ii) as of any date of
determination after the first Distribution Date, an amount equal to the
Certificate Balance of the Class of Related Certificates on the Distribution
Date immediately prior to such date of determination (determined as adjusted
pursuant to Section 1.02(iii), and in the case of the Class LA-1-1, Class
LA-1-2, Class LA-1-3, Class LA-1-4, Class LA-1A-1, Class LA-1A-2, Class LA-1A-3,
Class LA-1A-4, Class LA-1A-5, Class LA-1A-6, Class LA-1A-7, Class LA-1A-8, Class
LA-1A-9, Class LA-1A-10, Class LA-1A-11, Class LA-1A-12, Class LA-1A-13, Class
LA-1A-14, Class LA-1A-15, Class LA-2-1, Class LA-2-2, Class LA-2-3, Class
LA-2-4, Class LA-3-1, Class LA-3-2, Class LA-3-3, Class LA-3-4, Class LA-3-5,
Class LA-3-6, Class LA-3-7, Class LA-4A-1, Class LA-4A-2, Class LA-4A-3, Class
LA-SB-1, Class LA-SB-2, Class LA-SB-3, Class LA-SB-4, Class LA-SB-5, Class
LA-SB-6, Class LD-1, Class LD-2, Class LD-3, Class LD-4, Class LE-1, Class LE-2,
Class LF-1, Class LF-2, Class LF-3, Class LG-1, Class LG-2, Class LH-1, Class
LH-2, Class LH-3, Class LK-1 and Class LK-2 Uncertificated Interests, as set
forth in Section 4.01(b)).
"Lower-Tier Regular Distribution Amount": As defined in Section
4.01(b).
"Lower-Tier REMIC": One of two separate REMICs comprising a portion
of the Trust Fund, the assets of which consist of the Mortgage Loans (exclusive
of Excess Interest), any REO Property with respect thereto (or an allocable
portion thereof, in the case of the AB Mortgage Loans), or the Trust Fund's
beneficial interest in the REO Property with respect to the Universal Hotel
Portfolio Whole Loan, such amounts as shall from time to time be held in the
Certificate Account (other than with respect to the Companion Loans), the REO
Account, if any, the Interest Reserve Account, the Gain-on-Sale Reserve Account
and the Lower-Tier Distribution Account, and all other property included in the
Trust Fund that is not in the Upper-Tier REMIC or the Grantor Trust.
"Lowe's Aliso Viejo AB Mortgage Loan": That certain Mortgage Loan
identified on the Mortgage Loan Schedule as loan number 8.
"Lowe's Aliso Viejo Companion Loan": That certain loan evidenced by
a promissory B note, which is not an asset of the Trust Fund, secured by the
Mortgaged Property securing the Lowe's Aliso Viejo AB Mortgage Loan.
"Lowe's Aliso Viejo Intercreditor Agreement": That certain
Intercreditor Agreement Among Noteholders, dated as of November 10, 2003, by and
between Capital Lease Funding, LLC, as the B Note Holder, and LaSalle Bank
National Association, as the A Note Holder, as supplemented by the Intercreditor
Agreement Supplement, dated as of June 21, 2005 by and between Caplease, LP, a
Delaware limited partnership (as successor in interest to Capital Lease Funding,
LLC) and LaSalle Bank National Association, and related to the Lowe's Aliso
Viejo AB Mortgage Loan.
"LTV Ratio": With respect to any Mortgage Loan, as of any date of
determination, a fraction, expressed as a percentage, the numerator of which is
the scheduled principal balance of such Mortgage Loan as of such date (assuming
no defaults or prepayments on such Mortgage Loan prior to that date), and the
denominator of which is the Appraised Value of the related Mortgaged Property.
"MAI": Member of the Appraisal Institute.
"Majority Controlling Class Certificateholder": As of any date, the
Controlling Class Certificateholder owning a majority of the Percentage
Interests in the Controlling Class.
"Master Servicer": GMAC Commercial Mortgage Corporation, a
California corporation, and its successors in interest and assigns, or any
successor Master Servicer appointed as allowed herein.
"Maturity Date": With respect to any Mortgage Loan or Companion Loan
as of any date of determination, the date on which the last payment of principal
is due and payable under the related Mortgage Note, after taking into account
all Principal Prepayments received prior to such date of determination, but
without giving effect to (i) any acceleration of the principal of such Mortgage
Loan or Companion Loan by reason of default thereunder or (ii) any grace period
permitted by the related Mortgage Note.
"Monthly Payment": With respect to any Mortgage Loan or Companion
Loan, the scheduled monthly payment of principal and/or interest (other than
Excess Interest) on such Mortgage Loan or Companion Loan, including any Balloon
Payment, which is payable (as the terms of the applicable Mortgage Loan or
Companion Loan may be changed or modified in connection with a bankruptcy or
similar proceedings involving the related Mortgagor or by reason of a
modification, extension, waiver or amendment granted or agreed to pursuant to
the terms hereof) by a Mortgagor from time to time under the related Mortgage
Note and applicable law, without regard to any acceleration of principal of such
Mortgage Loan or Companion Loan by reason of default thereunder and without
respect to any Excess Interest.
"Moody's": Xxxxx'x Investors Service, Inc. If neither Moody's nor
any successor remains in existence, "Moody's" 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 Paying Agent, the Master Servicer and the Special Servicer, and
specific ratings of Moody's herein referenced shall be deemed to refer to the
equivalent ratings of the party so designated.
"Mortgage": With respect to any Mortgage Loan or Companion Loan, the
mortgage, deed of trust or other instrument securing a Mortgage Note and
creating a lien on the fee and/or leasehold interest in the related Mortgaged
Property.
"Mortgage Deferred Interest": With respect to any Mortgage Loan as
of any Due Date that has been modified to reduce the rate at which interest is
paid currently below the Mortgage Rate and capitalize the amount of such
interest reduction, the excess, if any, of (a) interest accrued on the Stated
Principal Balance thereof during the one-month interest accrual period set forth
in the related Mortgage Note at the related Mortgage Rate over (b) the interest
portion of the related Monthly Payment, as so modified or reduced, or, if
applicable, Assumed Scheduled Payment due on such Due Date.
"Mortgage File": With respect to each Mortgage Loan and Companion
Loan, if applicable, but subject to Section 2.01, collectively the following
documents:
(i) the original executed Mortgage Note bearing, or
accompanied by, all prior and intervening endorsements, assignments
or allonges showing a complete chain of endorsement or assignment
from the originator of the Mortgage Loan to the most recent
endorsee, and further endorsed (at the direction of the Depositor
given pursuant to the applicable Mortgage Loan Purchase Agreement),
on its face or by allonge attached thereto, without recourse,
representation or warranty, express or implied to the order of the
Trustee in the following form: "Pay to the order of Xxxxx Fargo
Bank, N.A., as trustee for the registered holders of X.X. Xxxxxx
Chase Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2005-LDP3" or in blank, provided
that the requirements of this clause (i) will be satisfied by
delivery of a signed lost note affidavit and indemnity properly
assigned or endorsed to the Trustee as described above, with a copy
of the Mortgage Note attached to it;
(ii) the original Mortgage (or a certified or other copy
thereof from the applicable recording office) and originals (or
certified or other copies from the applicable recording office) of
any intervening assignments thereof showing a complete chain of
assignment from the originator of the Mortgage Loan to the most
recent mortgagee of record, in each case with evidence of recording
indicated thereon (except for recording information not yet
available if the Mortgage or an assignment thereof has not been
returned from the applicable recording office);
(iii) an original assignment of the Mortgage, in complete and
recordable form (except for recording information not yet available
if the instrument being assigned has not been returned from the
applicable recording office), executed by the most recent assignee
of record thereof prior to the Trustee, or if none, by the
originator to "Xxxxx Fargo Bank, N.A., as trustee for the registered
holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2005-LDP3" or
in blank;
(iv) an original or copy of any related Assignment of Leases
(if such item is a document separate from the Mortgage) and the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage
Loan to the most recent assignee of record, in each case with
evidence of recording thereon (except for recording information not
yet available if the Assignment of Leases or an assignment thereof
has not been returned from the applicable recording office);
(v) an original assignment of any related Assignment of Leases
(if such item is a document separate from the Mortgage and to the
extent not already assigned pursuant to preceding clause (iii)), in
recordable form (except for recording information not yet available
if the instrument being assigned has not been returned from the
applicable recording office), executed by the applicable assignee of
record to "Xxxxx Fargo Bank, N.A., as trustee for the registered
holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2005-LDP3" or
in blank;
(vi) an original or copy of any related Security Agreement (if
such item is a document separate from the Mortgage) and the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage
Loan to the applicable Mortgage Loan Seller;
(vii) an original assignment of any related Security Agreement
(if such item is a document separate from the Mortgage), in complete
form, executed by the applicable Mortgage Loan Seller to "Xxxxx
Fargo Bank, N.A., as trustee for the registered holders of X.X.
Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2005-LDP3" or in blank;
(viii) originals or copies of all consolidation, assumption,
modification, written assurance and substitution agreements, with
evidence of recording thereon, where appropriate, in those instances
where the terms or provisions of the Mortgage, Mortgage Note or any
related security document have been consolidated or modified or the
Mortgage Loan has been assumed;
(ix) the original lender's title insurance policy or a copy
thereof, together with all endorsements or riders that were issued
with or subsequent to the issuance of such policy, insuring the
priority of the Mortgage as a first lien on the Mortgagor's fee or
leasehold interest in the Mortgaged Property, or if the policy has
not yet been issued, an original or copy of a "marked-up" written
commitment (marked as binding and in all cases countersigned by the
title insurer or its authorized agent) or the pro forma or specimen
title insurance policy (accepted or approved in writing by the title
insurer or its authorized agent) or an agreement to provide the same
pursuant to lender's escrow trust instructions executed by an
authorized representative of the title insurance company in
connection with the related Mortgage Loan;
(x) the original or copy of any guaranty of the obligations of
the Mortgagor under the Mortgage Loan and any intervening
assignments;
(xi) all UCC Financing Statements, assignments and
continuation statements or copies thereof, as filed or recorded, or
in form that is complete and suitable for filing or recording, as
appropriate, or other evidence of filing or recording sufficient to
perfect (and maintain the perfection of) the security interest held
by the originator of the Mortgage Loan (and each assignee of record
prior to the Trustee) in and to the personalty of the Mortgagor at
the Mortgaged Property (in each case with evidence of filing or
recording thereon), and to transfer such security interest to the
Trustee;
(xii) the original power of attorney or a copy thereof (with
evidence of recording thereon) granted by the Mortgagor if the
Mortgage, Mortgage Note or other document or instrument referred to
above was not signed by the Mortgagor;
(xiii) with respect to any Mortgage Loans with Additional
Debt, a co-lender agreement, a subordination agreement or other
intercreditor agreement, pursuant to which such Additional Debt will
be subordinated to such Mortgage Loan as set forth in such
intercreditor agreement;
(xiv) any additional documents required to be added to the
Mortgage File pursuant to this Agreement;
(xv) with respect to any Mortgage Loan secured by a ground
lease, the related ground lease or a certified copy thereof and any
related ground lessor estoppels;
(xvi) a copy of any letter of credit securing such Mortgage
Loan and, within sixty (60) days of the Closing Date or such earlier
date as required by the issuer of the letter of credit, a copy of
the appropriate transfer or assignment documents (which may be in
the form of an amendment) for such letter of credit;
(xvii) a copy of any Environmental Indemnity Agreement,
together with a copy of any environmental insurance policy;
(xviii) a copy of any loan agreement(s);
(xix) a copy of any escrow agreement(s);
(xx) a copy of any property management agreement(s);
(xxi) a copy of any franchise agreements and comfort letters
related thereto;
(xxii) a copy of any lock-box or cash management agreement(s);
(xxiii) a list related to such Mortgage Loan indicating the
related Mortgage Loan documents included in the related Mortgage
File (the "Mortgage Loan Checklist");
(xxiv) with respect to each Mortgage Loan that has one or more
Companion Loan(s), the related Intercreditor Agreement and a copy of
each Mortgage Note relating to such Companion Loan(s), rather than
the original; and
(xxv) with respect to the Universal Hotel Portfolio Mortgage
Loan, a copy of the Universal Hotel Portfolio Pooling Agreement;
provided, however, that (a) whenever the term "Mortgage File" is used to refer
to documents held by the Trustee, or a Custodian appointed thereby, such term
shall not be deemed to include such documents and instruments required to be
included therein unless they are actually received by the Trustee or a Custodian
appointed thereby, (b) if there exists with respect to any Crossed Group only
one original or certified copy of any document referred to in the definition of
"Mortgage File" covering all of the Mortgage Loans in such Crossed Group, then
the inclusion of such original or certified copy in the Mortgage File for any of
the Mortgage Loans constituting such Crossed Group shall be deemed the inclusion
of such original or certified copy in the Mortgage File for each such Mortgage
Loan, (c) to the extent that this Agreement refers to a "Mortgage File" for any
Companion Loan, such "Mortgage File" shall be construed to mean the Mortgage
File for the related Mortgage Loan (except that references to the Mortgage Note
otherwise described above shall be construed to instead refer to a photocopy of
such Mortgage Note) and (d) the execution and/or recordation of any assignment
of Mortgage, any separate assignment of Assignment of Leases and any assignment
of any UCC Financing Statement in the name of the Trustee shall not be construed
to limit the beneficial interest of the related Companion Holder(s) in such
instrument and the benefits intended to be provided to them by such instrument,
it being acknowledged that (i) the Trustee shall hold such record title for the
benefit of the Trust as the holder of the related Mortgage Loan and the related
Companion Holder(s) collectively and (ii) any efforts undertaken by the Trustee,
the Master Servicer, or the Special Servicer on its behalf to enforce or obtain
the benefits of such instrument shall be construed to be so undertaken by
Trustee, the Master Servicer or the Special Servicer for the benefit of the
Trust as the holder of the applicable Mortgage Loan and the related Companion
Holder(s) collectively. With respect to the Universal Hotel Portfolio Mortgage
Loan, the preceding document delivery requirements will be met by the delivery
by the applicable Mortgage Loan Seller of copies of the documents specified
above (other than the Mortgage Note (and all intervening endorsements)
evidencing the Universal Hotel Portfolio Mortgage Loan, with respect to which
the originals shall be required), including a copy of the Mortgage securing the
Universal Hotel Portfolio Mortgage Loan.
"Mortgage Loan": Each of the mortgage loans transferred and assigned
to the Trustee pursuant to Section 2.01 and from time to time held in the Trust
Fund. As used herein, the term "Mortgage Loan" includes the related Mortgage
Note, Mortgage and other documents contained in the related Mortgage File and
any related agreements. As used in this Agreement, the term "Mortgage Loan" does
not include any Companion Loan.
"Mortgage Loan Checklist": As defined in the definition of "Mortgage
File."
"Mortgage Loan Purchase Agreement": Each of the agreements between
the Depositor and each Mortgage Loan Seller, relating to the transfer of all of
such Mortgage Loan Seller's right, title and interest in and to the related
Mortgage Loans.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on
the Closing Date to the Trustee as part of the Trust Fund, attached hereto as
Exhibit B, which list sets forth the following information with respect to each
Mortgage Loan:
(i) the loan identification number and loan servicing number
(as specified in Annex A-1 to the Prospectus);
(ii) the Mortgagor's name;
(iii) the street address (including city, county, state and
zip code) and name of the related Mortgaged Property;
(iv) the Mortgage Rate in effect at origination;
(v) the Net Mortgage Rate in effect at the Cut-off Date;
(vi) the original principal balance;
(vii) the Cut-off Date Principal Balance;
(viii) the (a) original term to stated maturity, (b) remaining
term to stated maturity and (c) Maturity Date;
(ix) the original and remaining amortization terms;
(x) the amount of the Monthly Payment due on the first Due
Date following the Cut-off Date;
(xi) the Servicing Fee Rate;
(xii) whether the Mortgage Loan is a 30/360 Mortgage Loan or
an Actual/360 Mortgage Loan;
(xiii) the Anticipated Repayment Date, if applicable;
(xiv) the Revised Rate of such Mortgage Loan, if any;
(xv) whether such Mortgage Loan is secured by the related
Mortgagor's interest in a ground lease;
(xvi) identifying any Mortgage Loans with which such Mortgage
Loan is cross-defaulted or cross-collateralized;
(xvii) the originator of such Mortgage Loan and the Mortgage
Loan Seller;
(xviii) whether such Mortgage Loan has a guarantor;
(xix) whether such Mortgage Loan is secured by a letter of
credit;
(xx) amount of any reserve or escrowed funds that were
deposited at origination and any ongoing periodic deposit
requirements;
(xxi) number of grace days;
(xxii) whether a cash management agreement or lock-box
agreement is in place;
(xxiii) the general property type of the related Mortgaged
Property;
(xxiv) whether the Mortgage Loan permits defeasance;
(xxv) the interest accrual period; and
(xxvi) the applicable Loan Group to which the Mortgage Loan
belongs.
Such Mortgage Loan Schedule shall also set forth the aggregate of
the amounts described under clause (vii) above for all of the Mortgage Loans.
Such list may be in the form of more than one list, collectively setting forth
all of the information required.
"Mortgage Loan Seller": Each of: (1) JPMorgan, or its successor in
interest, (2) NCCI, or its successor in interest, and (3) LaSalle Bank National
Association, a national banking association, or its successor in interest.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan or Companion Loan, together
with any rider, addendum or amendment thereto.
"Mortgage Rate": With respect to: (i) any Mortgage Loan or Companion
Loan on or prior to its Maturity Date, the annual rate at which interest is
scheduled (in the absence of a default) to accrue on such Mortgage Loan or
Companion Loan from time to time in accordance with the related Mortgage Note
and applicable law, exclusive of the Excess Rate; or (ii) any Mortgage Loan or
Companion Loan after its Maturity Date, the annual rate described in clause (i)
above determined without regard to the passage of such Maturity Date.
"Mortgaged Property": The real property subject to the lien of a
Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note, including
without limitation, any Person that has acquired the related Mortgaged Property
and assumed the obligations of the original obligor under the Mortgage Note.
"NCCI": Nomura Credit & Capital, Inc., a Delaware corporation, or
its successor in interest.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the Mortgage Loans during the related Due Period,
exceeds (b) the aggregate amount deposited by the Master Servicer in the
Certificate Account for such Distribution Date pursuant to Section 3.19 in
connection with such Prepayment Interest Shortfalls.
"Net Investment Earnings": With respect to the Certificate Account,
the Servicing Accounts or the REO Account for any period from any Distribution
Date to the immediately succeeding P&I Advance Date, the amount, if any, by
which the aggregate of all interest and other income realized during such period
on funds relating to the Trust Fund held in such account, exceeds the aggregate
of all losses, if any, incurred during such period in connection with the
investment of such funds in accordance with Section 3.06.
"Net Investment Loss": With respect to the Certificate Account, the
Servicing Accounts or the REO Account for any period from any Distribution Date
to the immediately succeeding P&I Advance Date, the amount by which the
aggregate of all losses, if any, incurred during such period in connection with
the investment of funds relating to the Trust Fund held in such account in
accordance with Section 3.06, exceeds the aggregate of all interest and other
income realized during such period on such funds.
"Net Mortgage Rate": With respect to any Mortgage Loan or REO Loan
as of any date of determination, a rate per annum equal to the related Mortgage
Rate then in effect, minus the Administrative Cost Rate; provided, that for
purposes of calculating Pass-Through Rates, the Net Mortgage Rate for any
Mortgage Loan will be determined without regard to any modification, waiver or
amendment of the terms of such Mortgage Loan, whether agreed to by the Master
Servicer or the Special Servicer or resulting from a bankruptcy, insolvency or
similar proceeding involving the Mortgagor; provided further, that if any
Mortgage Loan does not accrue interest on the basis of a 360-day year consisting
of twelve 30-day months, then, solely for purposes of calculating Pass-Through
Rates, the Net Mortgage Rate of such Mortgage Loan for any one-month period
preceding a related Due Date will be the annualized rate at which interest would
have to accrue in respect of such Mortgage Loan on the basis of a 360-day year
consisting of twelve 30-day months in order to produce the aggregate amount of
interest actually accrued (exclusive of Default Interest or Excess Interest) in
respect of such Mortgage Loan during such one-month period at the related Net
Mortgage Rate; provided further, that, with respect to each Interest Reserve
Loan, the Net Mortgage Rate for the one month period (A) preceding the Due Dates
that occur in January and February in any year which is not a leap year or
preceding the Due Date that occurs in February in any year which is a leap year,
and (B) preceding the Due Date in March, will be the per annum rate stated in
the related Mortgage Note less the related Administrative Cost Rate. With
respect to any REO Loan, the Net Mortgage Rate shall be calculated as described
above, determined as if the predecessor Mortgage Loan had remained outstanding.
"Net Operating Income": With respect to any Mortgaged Property, for
any Mortgagor's fiscal year end, Net Operating Income will be calculated in
accordance with the standard definition of "Net Operating Income" approved from
time to time endorsed and put forth by the CMSA.
"New Lease": Any lease of REO Property entered into at the direction
of the Special Servicer on behalf of the Trust, including any lease renewed,
modified or extended on behalf of the Trust, if the Trust has the right to
renegotiate the terms of such lease.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance; provided, that Workout-Delayed Reimbursement
Amounts shall constitute a Nonrecoverable Advance only when the Person making
such determination in accordance with the procedures specified in the definition
of Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance, as
applicable, and taking into account factors such as all other outstanding
Advances, either (a) has determined in accordance with the Servicing Standards
or the standards applicable to the Trustee as set forth in the definitions of
"Nonrecoverable P&I Advance" and "Nonrecoverable Servicing Advance" that such
Workout-Delayed Reimbursement Amounts would not ultimately be recoverable from
Late Collections, Insurance Proceeds or Liquidation Proceeds, or any other
recovery on or in respect of the related Mortgage Loan or REO Loan, or (b) has
determined in accordance with the Servicing Standards or such other applicable
standard that such Workout-Delayed Reimbursement Amounts, along with any other
Workout-Delayed Reimbursement Amounts and Nonrecoverable Advances, would not
ultimately be recovered from aggregate principal collections in respect of the
pool of the Mortgage Loans or REO Loans.
"Nonrecoverable P&I Advance": Any P&I Advance previously made or
proposed to be made in respect of a Mortgage Loan or REO Loan which, in the
reasonable judgment of the Master Servicer or the Trustee, as applicable, will
not be ultimately recoverable, together with any accrued and unpaid interest
thereon at the Reimbursement Rate, from Late Collections or any other recovery
on or in respect of such Mortgage Loan or REO Loan; provided, however, that the
Special Servicer may, at its option, in consultation with the Directing
Certificateholder, make a determination in accordance with the Servicing
Standards, that any P&I Advance previously made or proposed to be made is a
Nonrecoverable P&I Advance and shall deliver to the Master Servicer or the
Trustee (and with respect to the Universal Hotel Portfolio Mortgage Loan, to any
Other Servicer of the Universal Hotel Portfolio Companion Notes) notice of such
determination. Any such determination shall be conclusive and binding on the
Master Servicer and the Trustee, provided, however, the Special Servicer shall
have no such obligation to make an affirmative determination that any P&I
Advance is or would be recoverable, and in the absence of a determination by the
Special Servicer that such P&I Advance is a Nonrecoverable P&I Advance, such
decision shall remain with the Master Servicer or Trustee, as applicable. In
making such recoverability determination, the Master Servicer, Special Servicer
or Trustee, as applicable, will be entitled to consider (among other things) the
obligations of the Mortgagor under the terms of the related Mortgage Loan as it
may have been modified, to consider (among other things) the related Mortgaged
Properties in their "as is" or then current conditions and occupancies, as
modified by such party's assumptions (consistent with the Servicing Standards in
the case of the Master Servicer and the Special Servicer or its good faith
business judgment in the case of the Trustee) regarding the possibility and
effects of future adverse change with respect to such Mortgaged Properties, to
estimate and consider (among other things) future expenses and to estimate and
consider (consistent with the Servicing Standards in the case of the Master
Servicer and the Special Servicer or its good faith business judgment in the
case of the Trustee) (among other things) the timing of recoveries and will be
entitled to give due regard to the existence of any Nonrecoverable Advances
which, at the time of such consideration, the recovery of which are being
deferred or delayed by the Master Servicer, in light of the fact that Related
Proceeds are a source of recovery not only for the Advance under consideration
but also a potential source of recovery for such delayed or deferred Advance.
With respect to the Universal Hotel Portfolio Loan, if any servicer in
connection with a subsequent securitization of any Universal Hotel Portfolio
Companion Note determines that any P&I Advance with respect to the Universal
Hotel Portfolio Companion Note, if made, would be nonrecoverable, such
determination will be binding on the Master Servicer and the Trustee as it
relates to any proposed P&I Advance. In addition, any Person, in considering
whether a P&I Advance is a Nonrecoverable Advance, will be entitled to give due
regard to the existence of any outstanding Nonrecoverable Advance or
Workout-Delayed Reimbursement Amount with respect to other Mortgage Loans which,
at the time of such consideration, the reimbursement of which is being deferred
or delayed by the Master Servicer or the Trustee, in light of the fact that
proceeds on the related Mortgage Loan are a source of reimbursement not only for
the P&I Advance under consideration, but also as a potential source of
reimbursement of such Nonrecoverable Advance or Workout-Delayed Reimbursement
Amounts which are or may be being deferred or delayed. In addition, any such
Person may update or change its recoverability determinations at any time (but
not reverse any other Person's determination that an Advance is a Nonrecoverable
Advance) and, consistent with the Servicing Standards, in the case of the Master
Servicer and the Special Servicer or its good faith business judgment in the
case of the Trustee, may obtain, promptly upon request, from the Special
Servicer any reasonably required analysis, Appraisals or market value estimates
or other information in the Special Servicer's possession for making a
recoverability determination. Absent bad faith, the Master Servicer's, Special
Servicer's or the Trustee's determination as to the recoverability of any P&I
Advance shall be conclusive and binding on the Certificateholders. The
determination by the Master Servicer, the Special Servicer or the Trustee, as
applicable, that the Master Servicer or the Trustee, as applicable, has made a
Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would
constitute a Nonrecoverable P&I Advance, or any updated or changed
recoverability determination, shall be evidenced by an Officer's Certificate
delivered by either the Special Servicer or the Master Servicer to the other and
to the Trustee, the Paying Agent, the Directing Certificateholder, the
Depositor, or by the Trustee to the Depositor, the Master Servicer, the Special
Servicer, the Paying Agent and the Directing Certificateholder. The Officer's
Certificate shall set forth such determination of nonrecoverability and the
considerations of the Master Servicer, the Special Servicer or the Trustee, as
applicable, forming the basis of such determination (which shall be accompanied
by, to the extent available, income and expense statements, rent rolls,
occupancy status, property inspections and any other information used by the
Master Servicer, the Special Servicer or the Trustee, as applicable, to make
such determination and shall include any existing Appraisal of the related
Mortgage Loan or Mortgaged Property). The Trustee shall be entitled to
conclusively rely on the Master Servicer's determination that a P&I Advance is
or would be nonrecoverable and shall conclusively rely on and be bound by any
determination of the Special Servicer that a P&I Advance is or would be
nonrecoverable, and the Master Servicer shall conclusively rely on and be bound
by the Special Servicer's determination that a P&I Advance is or would be
nonrecoverable. In the case of a cross-collateralized Mortgage Loan, such
recoverability determination shall take into account the cross-collateralization
of the related cross-collateralized Mortgage Loan.
"Nonrecoverable Servicing Advance": Any Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan (other than the
Universal Hotel Portfolio Mortgage Loan) or REO Property which, in the
reasonable judgment of the Master Servicer, the Special Servicer or the Trustee,
as the case may be, will not be ultimately recoverable, together with any
accrued and unpaid interest thereon, at the Reimbursement Rate, from Late
Collections or any other recovery on or in respect of such Mortgage Loan or REO
Property. In making such recoverability determination, such Person will be
entitled to consider (among other things) the obligations of the Mortgagor under
the terms of the related Mortgage Loan as it may have been modified, to consider
(among other things) the related Mortgaged Properties in their "as is" or then
current conditions and occupancies, as modified by such party's assumptions
(consistent with the Servicing Standards in the case of the Master Servicer or
the Special Servicer or in its good faith business judgment in the case of the
Trustee) regarding the possibility and effects of future adverse change with
respect to such Mortgaged Properties, to estimate and consider (consistent with
the Servicing Standards in the case of the Master Servicer or the Special
Servicer or in its good faith business judgment in the case of the Trustee)
(among other things) future expenses and to estimate and consider (among other
things) the timing of recoveries. In addition, any Person, in considering
whether a Servicing Advance is a Nonrecoverable Servicing Advance, will be
entitled to give due regard to the existence of any Nonrecoverable Advance or
Workout-Delayed Reimbursement Amounts with respect to other Mortgage Loans
which, at the time of such consideration, the recovery of which are being
deferred or delayed by the Master Servicer, in light of the fact that proceeds
on the related Mortgage Loan are a source of recovery not only for the Servicing
Advance under consideration, but also as a potential source of recovery of such
Nonrecoverable Advance or Workout-Delayed Reimbursement Amounts which are or may
be being deferred or delayed. In addition, any such Person may update or change
its recoverability determinations at any time (but not reverse any other
Person's determination that an Advance is a Nonrecoverable Advance) and,
consistent with the Servicing Standards, in the case of the Master Servicer, may
obtain, promptly upon request, from the Special Servicer any reasonably required
analysis, Appraisals or market value estimates or other information in the
Special Servicer's possession for making a recoverability determination. The
determination by the Master Servicer, the Special Servicer or the Trustee, as
the case may be, that it has made a Nonrecoverable Servicing Advance or that any
proposed Servicing Advance, if made, would constitute a Nonrecoverable Servicing
Advance, or any updated or changed recoverability determination, shall be
evidenced by an Officer's Certificate delivered by either of the Special
Servicer or Master Servicer to the other and to the Trustee, the Paying Agent,
the Directing Certificateholder and the Depositor, or by the Trustee to the
Depositor, the Master Servicer, the Special Servicer, the Paying Agent and the
Directing Certificateholder; provided, however, that the Special Servicer may,
at its option, in consultation with the Directing Certificateholder, make a
determination in accordance with the Servicing Standards, that any Servicing
Advance previously made or proposed to be made is a Nonrecoverable Servicing
Advance and shall deliver to the Master Servicer and the Trustee notice of such
determination. Any such determination shall be conclusive and binding on the
Master Servicer, the Special Servicer and the Trustee; provided, however, the
Special Servicer shall have no such obligation to make an affirmative
determination that any Servicing Advance is or would be recoverable, and in the
absence of a determination by the Special Servicer that such Advance is a
Nonrecoverable Servicing Advance, such decision shall remain with the Master
Servicer or Trustee, as applicable. The Officer's Certificate shall set forth
such determination of nonrecoverability and the considerations of the Master
Servicer, the Special Servicer or the Trustee, as applicable, forming the basis
of such determination (which shall be accompanied by, to the extent available,
such related income and expense statements, rent rolls, occupancy status and
property inspections, and shall include an Appraisal of the related Mortgage
Loan or Mortgaged Property). The Special Servicer shall promptly furnish any
party required to make Servicing Advances hereunder with any information in its
possession regarding the Specially Serviced Mortgage Loans and REO Properties as
such party required to make Servicing Advances may reasonably request for
purposes of making recoverability determinations. The Trustee shall be entitled
to conclusively rely on the Master Servicer's determination that a Servicing
Advance is or would be nonrecoverable and shall conclusively rely on and be
bound by any determination of the Special Servicer that a Servicing Advance is
or would be nonrecoverable, and the Master Servicer shall conclusively rely on
and be bound by the Special Servicer's determination that a Servicing Advance is
or would be nonrecoverable. In the case of a cross collateralized Mortgage Loan,
such recoverability determination shall take into account the cross
collateralization of the related cross collateralized Mortgage Loan. The
determination as to the recoverability of any servicing advance previously made
or proposed to be made in respect of the Universal Hotel Portfolio Whole Loan
shall be made by the Universal Hotel Portfolio Master Servicer, the Universal
Hotel Portfolio Special Servicer or the Universal Hotel Portfolio Trustee, as
the case may be, pursuant to the Universal Hotel Portfolio Pooling Agreement.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class X-1, Class A-1A, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class O, Class NR, Class S, Class R
or Class LR Certificate.
"Non-Specially Serviced Mortgage Loan": Any Mortgage Loan or
Companion Loan that is not a Specially Serviced Mortgage Loan.
"Non-U.S. Person": Any person other than a U.S. Person, unless, with
respect to the Transfer of a Residual Certificate, (i) such person holds such
Residual Certificate in connection with the conduct of a trade or business
within the United States and furnishes the Transferor and the Certificate
Registrar with an effective Internal Revenue Service Form W-8ECI (or successor
form) or (ii) the Transferee delivers to both the Transferor and the Certificate
Registrar an opinion of a nationally recognized tax counsel to the effect that
such Transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such Transfer of the Residual
Certificate will not be disregarded for federal income tax purposes. A Person
shall be treated as a Non-U.S. Person, (A) notwithstanding clause (i) of the
preceding sentence, if it is a partnership (including any entity treated as a
partnership for U.S. federal income tax purposes) any interest in which is
owned, directly or indirectly, through one more partnerships, trusts or other
pass-through entities by a Non-U.S. Person or (B) if such Person is a U.S.
Person with respect to whom income from a Residual Certificate is attributable
to a foreign permanent establishment of fixed base, within the meaning of an
applicable income treaty, of such Person or any other U.S. Person.
"Notional Amount": In the case of the Class X-1 Certificates, the
Class X-1 Notional Amount. In the case of the Class X-2 Certificates, the Class
X-2 Notional Amount. In the case of each Component, the amount set forth in the
applicable definition thereof.
"Offered Certificates": The Class A-1, Class A-2, Class X-0, Xxxxx
X-0X, Xxxxx X-0X, Class A-SB, Class X-2, Class A-J, Class B, Class C and Class D
Certificates.
"Officer's Certificate": A certificate signed by a Servicing Officer
of the Master Servicer or the Special Servicer, as the case may be, or a
Responsible Officer of the Trustee.
"Opinion of Counsel": 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 and the Paying
Agent, except that any opinion of counsel relating to (a) the qualification of
the Upper-Tier REMIC or Lower-Tier REMIC as a REMIC, (b) compliance with the
REMIC Provisions, (c) qualification of the Grantor Trust as a grantor trust
under subpart E, Part I of subchapter J of the Code for federal income tax
purposes or (d) the resignation of the Master Servicer, the Special Servicer or
the Depositor pursuant to Section 6.04, must be an opinion of counsel who is in
fact Independent of the Depositor, the Master Servicer or the Special Servicer,
as applicable.
"Option Holder": As defined in Section 3.18(a).
"Option Price": As defined in Section 3.18(a).
"Original Certificate Balance": With respect to any Class of
Certificates (other than the Class S, the Class X and the Residual
Certificates), the initial aggregate principal amount thereof as of the Closing
Date, in each case as specified in the Preliminary Statement.
"Original Lower-Tier Principal Amount": With respect to any Class of
Uncertificated Lower-Tier Interest, the initial principal amount thereof as of
the Closing Date, in each case as specified in the Preliminary Statement.
"Original Notional Amount": With respect to the Class X-1 Notional
Amount and Class X-2 Notional Amount, the initial Notional Amount thereof as of
the Closing Date, as specified in the Preliminary Statement.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Other Pooling and Servicing Agreement": Any of the pooling and
servicing agreements that create a trust fund whose assets include a Pari Passu
Serviced Companion Loan.
"Other Servicer": Any servicer under an Other Pooling and Servicing
Agreement.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"P&I Advance": As to any Mortgage Loan or REO Loan, any advance made
by the Master Servicer or the Trustee, as applicable, pursuant to Section 4.03
or Section 7.05.
"P&I Advance Date": The Business Day immediately prior to each
Distribution Date.
"P&I Advance Determination Date": With respect to any Distribution
Date, the Business Day prior to the P&I Advance Date.
"Pari Passu Loan": The Universal Hotel Portfolio Mortgage Loan.
"Pari Passu Serviced Companion Loan": Any of the Universal Hotel
Portfolio Companion Notes.
"Pass-Through Rate": Any of the Class A-1 Pass-Through Rate, the
Class A-2 Pass-Through Rate, the Class A-3 Pass-Through Rate, the Class A-4A
Pass-Through Rate, the Class A-4B Pass-Through Rate, the Class A-SB Pass-Through
Rate, the Class A-1A Pass-Through Rate, the Class A-J Pass-Through Rate, the
Class B Pass-Through Rate, the Class C Pass-Through Rate, the Class D
Pass-Through Rate, the Class E Pass-Through Rate, the Class F Pass-Through Rate,
the Class G Pass-Through Rate, the Class H Pass-Through Rate, the Class J
Pass-Through Rate, the Class K Pass-Through Rate, the Class L Pass-Through Rate,
the Class M Pass-Through Rate, the Class N Pass-Through Rate, the Class O
Pass-Through Rate, the Class NR Pass-Through Rate, the Class X-1 Pass-Through
Rate or the Class X-2 Pass-Through Rate.
"Paying Agent": LaSalle Bank National Association, a national
banking association organized under the laws of the United States, or any
successor appointed thereto pursuant to Section 5.07 or any successor Paying
Agent otherwise appointed hereunder.
"Paying Agent Fee": The portion of the Trustee Fee payable to the
Paying Agent pursuant to the terms hereof and calculated at the Paying Agent Fee
Rate.
"Paying Agent Fee Rate": 0.00043% per annum.
"Penalty Charges": With respect to any Mortgage Loan (or successor
REO Loan), any amounts actually collected thereon (or, in the case of a Mortgage
Loan (or successor REO Loan thereto) that is part of a Loan Pair, actually
collected on such Loan Pair and allocated and paid on such Mortgage Loan (or
successor REO Loan) in accordance with the related Intercreditor Agreement) that
represent late payment charges and/or Default Interest, other than a Yield
Maintenance Charge or prepayment premium, and other than any Excess Interest.
"Percentage Interest": As to any Certificate, the percentage
interest evidenced thereby in distributions required to be made with respect to
the related Class. With respect to any Regular Certificate, the percentage
interest is equal to the Denomination of such Certificate divided by the
Original Certificate Balance or Original Notional Amount, as applicable, of such
Class of Certificates as of the Closing Date. With respect to a Class S
Certificate or a Residual Certificate, the percentage interest is set forth on
the face thereof.
"Permitted Investments": Any one or more of the following
obligations or securities (including obligations or securities of the Paying
Agent, if otherwise qualifying hereunder), regardless whether issued by the
Depositor, the Master Servicer, the Special Servicer, the Trustee or any of
their respective Affiliates and having the required ratings, if any, provided
for in this definition and which shall not be subject to liquidation prior to
maturity:
(i) direct obligations of, and obligations fully guaranteed as
to timely payment of principal and interest by, the United States of
America, Xxxxxx Xxx, Xxxxxxx Mac or any agency or instrumentality of
the United States of America, the obligations of which are backed by
the full faith and credit of the United States of America that
mature in one (1) year or less from the date of acquisition;
provided, that any obligation of, or guarantee by, Xxxxxx Mae or
Xxxxxxx Mac, other than an unsecured senior debt obligation of
Xxxxxx Mae or Xxxxxxx Mac, shall be a Permitted Investment only if
such investment would not result in the downgrading, withdrawal or
qualification of the then-current rating assigned by each Rating
Agency to any Certificate as evidenced in writing;
(ii) time deposits, unsecured certificates of deposit, or
bankers' acceptances that mature in one (1) year or less after the
date of issuance and are issued or held by any depository
institution or trust company (including the Trustee) incorporated or
organized under the laws of the United States of America or any
State thereof and subject to supervision and examination by federal
or state banking authorities, so long as the commercial paper or
other short- term debt obligations of such depository institution or
trust company are rated in the highest rating categories of each
Rating Agency or such other rating as would not result in the
downgrading, withdrawal or qualification of the then current rating
assigned by each Rating Agency to any Class of Certificates as
evidenced in writing;
(iii) repurchase agreements or obligations with respect to any
security described in clause (i) above where such security has a
remaining maturity of one year or less and where such repurchase
obligation has been entered into with a depository institution or
trust company (acting as principal) described in clause (ii) above;
(iv) debt obligations bearing interest or sold at a discount
issued by any corporation incorporated under the laws of the United
States of America or any state thereof which mature in one (1) year
or less from the date of acquisition, which debt obligations are
rated in the highest rating categories of each Rating Agency or such
other rating as would not result in the downgrading, withdrawal or
qualification of the then current rating assigned by each Rating
Agency to any Class of Certificates as evidenced in writing;
provided, however, that securities issued by any particular
corporation will not be Permitted Investments to the extent that
investment therein will cause the then outstanding principal amount
of securities issued by such corporation and held in the accounts
established hereunder to exceed 10% of the sum of the aggregate
principal balance and the aggregate principal amount of all
Permitted Investments in such accounts;
(v) commercial paper (including both non-interest bearing
discount obligations and interest bearing obligations) of any
corporation or other entity organized under the laws of the United
States or any state thereof payable on demand or on a specified date
maturing in one (1) year or less from the date of acquisition
thereof and which is rated in the highest rating category of each
Rating Agency (or such lower rating as will not result in
qualification, downgrading or withdrawal of the ratings then
assigned by each Rating Agency to any Class of Certificates as
evidenced in writing);
(vi) money market funds, rated in the highest rating
categories of each Rating Agency; and
(vii) any other demand, money market or time deposit,
obligation, security or investment, (a) with respect to which each
Rating Agency shall have confirmed in writing that such investment
will not result in a downgrade, qualification or withdrawal of the
then current rating assigned by such Rating Agency to any Class of
Certificates as evidenced in writing and (b) which qualifies as a
"cash flow investment" pursuant to Section 860G(a)(6) of the Code;
provided, however, that in each case if the investment is rated by S&P, (a) it
shall not have an "r" highlighter affixed to its rating from S&P, (b) it shall
have a predetermined fixed dollar of principal due at maturity that cannot vary
or change and (c) any such investment that provides for a variable rate of
interest must have an interest rate that is tied to a single interest rate index
plus a fixed spread, if any, and move proportionately with such index; and
provided further, however, that no such instrument shall be a Permitted
Investment (a) if such instrument evidences principal and interest payments
derived from obligations underlying such instrument and the interest payments
with respect to such instrument provide a yield to maturity at the time of
acquisition of greater than 120% of the yield to maturity at par of such
underlying obligations or (b) if such instrument may be redeemed at a price
below the purchase price; and provided further, however, that no amount
beneficially owned by the Upper-Tier REMIC or the Lower-Tier REMIC (even if not
yet deposited in the Trust) may be invested in investments (other than money
market funds) treated as equity interests for federal income tax purposes,
unless the Master Servicer receives an Opinion of Counsel, at its own expense,
to the effect that such investment will not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC. Permitted Investments that are subject
to prepayment or call may not be purchased at a price in excess of par.
"Permitted Transferee": Any Person who is a Qualified Institutional
Buyer.
"Person": Any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan": As defined in Section 5.02(c).
"Prepayment Assumption": A "constant prepayment rate" of 0% used for
determining the accrual of original issue discount and market discount, if any,
and the amortization premium, if any, on the Certificates for federal income tax
purposes; provided, it is assumed that each Mortgage Loan with an Anticipated
Repayment Date prepays on such date.
"Prepayment Interest Excess": For any Distribution Date and with
respect to any Mortgage Loan that was subject to a prepayment in full or in part
during the related Due Period, which prepayment was applied to such Mortgage
Loan after the related Due Date and prior to the following Determination Date,
the amount of interest (net of the related Servicing Fees and any Excess
Interest), to the extent collected from the related Mortgagor (without regard to
any prepayment premium or Yield Maintenance Charge actually collected), that
would have accrued at a rate per annum equal to the sum of (x) the related Net
Mortgage Rate for such Mortgage Loan and (y) the Trustee Fee Rate, on the amount
of such prepayment from and after such Due Date and ending on the date of such
prepayment.
"Prepayment Interest Shortfall": For any Distribution Date and with
respect to any Mortgage Loan that was subject to a Principal Prepayment in full
or in part during the related Due Period, which Principal Prepayment was applied
to such Mortgage Loan after the related Determination Date (or, with respect to
each Mortgage Loan with a Due Date occurring after the related Determination
Date, the related Due Date) and prior to the following Due Date, the amount of
interest, to the extent not collected from the related Mortgagor (without regard
to any prepayment premium or Yield Maintenance Charge actually collected), that
would have accrued at a rate per annum equal to the sum of (x) the related Net
Mortgage Rate for such Mortgage Loan and (y) the Trustee Fee Rate, on the amount
of such Principal Prepayment during the period commencing on the date as of
which such Principal Prepayment was applied to such Mortgage Loan and ending on
such Due Date.
"Primary Collateral": With respect to any Crossed Loan, that portion
of the Mortgaged Property designated as directly securing such Crossed Loan and
excluding any Mortgaged Property as to which the related lien may only be
foreclosed upon by exercise of the cross-collateralization provisions of such
Crossed Loan.
"Primary Servicing Fee": The monthly fee payable by the Master
Servicer from the Servicing Fee to each Initial Sub-Servicer, which monthly fee
accrues at the rate per annum specified as such in the Sub-Servicing Agreement
with such Initial Sub-Servicer.
"Prime Rate": The "Prime Rate" as published in the "Money Rates"
section of the New York City edition of The Wall Street Journal (or, if such
section or publication is no longer available, such other comparable publication
as determined by the Paying Agent in its reasonable discretion) as may be in
effect from time to time, or, if the "Prime Rate" no longer exists, such other
comparable rate (as determined by the Paying Agent in its reasonable discretion)
as may be in effect from time to time.
"Principal Distribution Amount": With respect to any Distribution
Date, an amount equal to the sum of (a) the Principal Shortfall for such
Distribution Date, (b) the Scheduled Principal Distribution Amount for such
Distribution Date, (c) the Unscheduled Principal Distribution Amount for such
Distribution Date and (d) with respect to the first Distribution Date, the
Westlink Shopping Center Principal Deposit Amount; provided, that the Principal
Distribution Amount for any Distribution Date shall be reduced by the amount of
any reimbursements of (i) Nonrecoverable Advances plus interest on such
Nonrecoverable Advances that are paid or reimbursed from principal collections
on the Mortgage Loans in a period during which such principal collections would
have otherwise been included in the Principal Distribution Amount for such
Distribution Date and (ii) Workout-Delayed Reimbursement Amounts that were paid
or reimbursed from principal collections on the Mortgage Loans in a period
during which such principal collections would have otherwise been included in
the Principal Distribution Amount for such Distribution Date (provided, that, in
the case of clause (i) and (ii) above, if any of the amounts that were
reimbursed from principal collections on the Mortgage Loans are subsequently
recovered on the related Mortgage Loan, such recovery will increase the
Principal Distribution Amount for the Distribution Date related to the period in
which such recovery occurs).
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan which is received in advance of its scheduled Due
Date and which is not accompanied by an amount of interest representing
scheduled interest due on any date or dates in any month or months subsequent to
the month of prepayment.
"Principal Shortfall": For any Distribution Date after the initial
Distribution Date with respect to the Mortgage Loans, the amount, if any, by
which (a) the related Principal Distribution Amount for the preceding
Distribution Date, exceeds (b) the aggregate amount distributed in respect of
principal on the Class A, Class A-J, Class B, Class C, Class D, Class E, Class
F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, and
Class NR Certificates for such preceding Distribution Date pursuant to Section
4.01(a) on such preceding Distribution Date. The Principal Shortfall for the
initial Distribution Date will be zero.
"Privileged Person": Each Rating Agency, any of the Holders of each
Class of Certificates, each Underwriter, the Initial Purchasers, each Mortgage
Loan Seller (solely with respect to the Mortgage Loans sold by such Mortgage
Loan Seller to the Trust) and certain financial market publishers (which
initially shall be Bloomberg, L.P., Xxxxx, LLC and Intex Solutions, Inc.), each
party to this Agreement, the Directing Certificateholder, any designee of the
Depositor and any other Person who shall have provided the Paying Agent with a
certificate, using the form attached hereto as Exhibit U, which form is
available from the Paying Agent, certifying that such Person is a
Certificateholder, a beneficial owner or a prospective purchaser of a
Certificate.
"Prospectus": The Prospectus dated August 16, 2005, as supplemented
by the Prospectus Supplement dated August 16, 2005, relating to the offering of
the Offered Certificates.
"Purchase Option": As defined in Section 3.18(a)(ii).
"Purchase Option Notice": As defined in Section 3.18(a)(iii).
"Purchase Price": With respect to any Mortgage Loan (or REO Loan) to
be purchased by a Mortgage Loan Seller pursuant to Section 6 of the related
Mortgage Loan Purchase Agreement, by the Majority Controlling Class
Certificateholder, the Special Servicer or the Master Servicer pursuant to
Section 3.18(b), by the Master Servicer, the Special Servicer, the Holders of
the Controlling Class or the Holders of the Class LR Certificates pursuant to
Section 9.01 or to be otherwise sold pursuant to Section 3.18(d), a price equal
to:
(i) the outstanding principal balance of such Mortgage Loan
(or related REO Loan) as of the date of purchase; plus
(ii) all accrued and unpaid interest on such Mortgage Loan (or
the related REO Loan) at the related Mortgage Rate in effect from
time to time (exclusive of Default and Excess Interest) to but not
including the Due Date immediately preceding the Determination Date
for the related Distribution Date in which such Purchase Price is
included in the Available Distribution Amount; plus
(iii) all related Servicing Advances that are unreimbursed out
of collections from the Mortgage Loan and accrued and unpaid
interest on related Advances at the Reimbursement Rate, and any
Special Servicing Fees whether paid or then owing allocable to such
Mortgage Loan and all additional Trust Fund expenses in respect of
such Mortgage Loan; plus
(iv) if such Mortgage Loan (or REO Loan) is being purchased by
a Mortgage Loan Seller pursuant to Section 6 of the applicable
Mortgage Loan Purchase Agreement, to the extent not otherwise
included pursuant to clause (iii), all reasonable out-of-pocket
expenses reasonably incurred or to be incurred by the Master
Servicer, the Special Servicer, the Depositor and the Trustee in
respect of the Breach or Defect giving rise to the repurchase
obligation, including any expenses arising out of the enforcement of
the repurchase obligation, including, without limitation, all legal
fees and expenses relating to the enforcement of such repurchase
obligation; plus
(v) Liquidation Fees, if any, payable with respect to such
Mortgage Loan.
With respect to any REO Property to be sold pursuant to Section 3.18(c), the
"Purchase Price" shall mean the amount calculated in accordance with the
preceding sentence in respect of the related REO Loan. With respect to any REO
Property to be purchased or sold pursuant to Section 3.18(b) that relates to a
Loan Pair, the term "REO Loan" shall mean the REO Loan with respect to both the
related Mortgage Loan and the related Companion Loans.
"Qualified Bidder": As defined in Section 7.01(c).
"Qualified Institutional Buyer": A "qualified institutional buyer"
as defined in Rule 144A under the Act.
"Qualified Insurer": (i) With respect to any Mortgage Loan, REO Loan
or REO Property, an insurance company or security or bonding company qualified
to write the related Insurance Policy in the relevant jurisdiction with a
minimum claims paying ability rating of at least "A-" by S&P and "A-3" by
Xxxxx'x and (ii) with respect to the fidelity bond and errors and omissions
Insurance Policy required to be maintained pursuant to Section 3.07(c), except
as set forth in Section 3.07(c), an insurance company that has a claims paying
ability rated no lower than two ratings below the rating assigned to the then
highest rated outstanding Certificate, but in no event lower than "A-" by S&P
and "A-3" by Xxxxx'x (or, if not rated by one of such Rating Agencies, then at
least "A-" by two other nationally recognized statistical rating organizations
(which may include the other Rating Agencies)) or, in the case of clauses (i)
and (ii), such other rating as each Rating Agency shall have confirmed in
writing will not cause such Rating Agency to downgrade, qualify or withdraw the
then current rating assigned by such Rating Agency to any Class of Certificates
as evidenced in writing.
"Qualified Substitute Mortgage Loan": A mortgage loan which must, on
the date of substitution: (i) have an outstanding principal balance, after
application of all scheduled payments of principal and interest due during or
prior to the month of substitution, whether or not received, not in excess of
the Stated Principal Balance of the deleted Mortgage Loan as of the Due Date in
the calendar month during which the substitution occurs; (ii) have a Mortgage
Rate not less than the Mortgage Rate of the deleted Mortgage Loan; (iii) have
the same Due Date as and grace period no longer than that of the deleted
Mortgage Loan; (iv) accrue interest on the same basis as the deleted Mortgage
Loan (for example, on the basis of a 360-day year consisting of twelve 30-day
months); (v) have a remaining term to stated maturity not greater than, and not
more than two years less than, the remaining term to stated maturity of the
deleted Mortgage Loan; (vi) have a then current loan-to-value ratio not higher
than that of the deleted Mortgage Loan as of the Closing Date and a current
loan-to-value ratio not higher than the then current loan-to-value ratio of the
deleted Mortgage Loan, in each case using the "value" as determined using an MAI
appraisal; (vii) comply (except in a manner that would not be adverse to the
interests of the Certificateholders) as of the date of substitution with all of
the representations and warranties set forth in the applicable Mortgage Loan
Purchase Agreement; (viii) have an environmental report that indicates no
material adverse environmental conditions with respect to the related Mortgaged
Property and which will be delivered as a part of the related Servicing File;
(ix) have a then current debt service coverage ratio of not less than the
original debt service coverage ratio of the deleted Mortgage Loan as of the
Closing Date and a current debt service coverage ratio of not less than the
current debt service coverage ratio of the deleted Mortgage Loan; (x) constitute
a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of
the Code as evidenced by an Opinion of Counsel (provided at the applicable
Mortgage Loan Seller's expense); (xi) not have a maturity date or an
amortization schedule after the date two years prior to the Rated Final
Distribution Date; (xii) have comparable prepayment restrictions to those of the
deleted Mortgage Loan; (xiii) not be substituted for a deleted Mortgage Loan
unless the Trustee has received prior confirmation in writing by each Rating
Agency that such substitution will not result in the withdrawal, downgrade, or
qualification of the rating assigned by the Rating Agency to any Class of
Certificates then rated by the Rating Agency (the cost, if any, of obtaining
such confirmation to be paid by the applicable Mortgage Loan Seller); (xiv) have
been approved by the Directing Certificateholder; (xv) prohibit defeasance
within two years of the Closing Date; (xvi) not be substituted for a deleted
Mortgage Loan if it would result in the termination of the REMIC status of
either of the REMICs established under this Agreement or the imposition of tax
on either of such REMICs other than a tax on income expressly permitted or
contemplated to be imposed by the terms of this Agreement, as determined by an
Opinion of Counsel; (xvii) have an engineering report with respect to the
related Mortgaged Property that will be delivered as a part of the related
Servicing File; (xviii) become a part of the same Loan Group as the deleted
Mortgage Loan, and (xix) be current in the payment of all scheduled payments of
principal and interest then due. In the event that more than one mortgage loan
is substituted for a deleted Mortgage Loan, then the amounts described in clause
(i) shall be determined on the basis of aggregate Stated Principal Balances and
each such proposed Qualified Substitute Mortgage Loan shall individually satisfy
each of the requirements specified in (ii) through (xix); provided, the rates
described in clause (ii) above and the remaining term to stated maturity
referred to in clause (v) above shall be determined on a weighted average basis;
provided further, that no individual Mortgage Rate (net of the Servicing Fee
Rate and the Trustee Fee Rate) shall be lower than the highest fixed
Pass-Through Rate (and not subject to a cap equal to the Weighted Average Net
Mortgage Rate) of any class of Regular Certificates having a principal balance
then outstanding. When a Qualified Substitute Mortgage Loan is substituted for a
deleted Mortgage Loan, the applicable Mortgage Loan Seller shall certify that
the Mortgage Loan meets all of the requirements of the above definition and
shall send such certification to the Trustee and the Directing
Certificateholders.
"Rated Final Distribution Date": As to each Class of Certificates,
August 15, 2042, the first Distribution Date after the 24th month following the
end of the amortization term for the Mortgage Loan that, as of the Cut-off Date,
has the longest remaining amortization term.
"Rating Agency": Each of S&P and Xxxxx'x or their successors in
interest. If no such rating agency nor any successor remains in existence,
"Rating Agency" shall be deemed to refer to such nationally recognized
statistical rating agency or other comparable Person designated by the
Depositor, notice of which designation shall be given to the Trustee, the Paying
Agent, the Special Servicer and the Master Servicer, and specific ratings of S&P
and Xxxxx'x herein referenced shall be deemed to refer to the equivalent ratings
of the party so designated.
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Registrar Office": As defined in Section 5.02(a).
"Regular Certificate": Any of the Class A, Class A-J, Class B, Class
C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class
M, Class N, Class O, Class NR, Class X-1 and Class X-2 Certificates.
"Regulation D": Regulation D under the Act.
"Regulation S": Regulation S under the Act.
"Regulation S Book-Entry Certificates": The Regular Certificates
sold in offshore transactions in reliance on Regulation S and represented by one
or more Book-Entry Certificates deposited with the Paying Agent as custodian for
the Depository.
"Regulation S Investor": With respect to a transferee of a
Regulation S Book-Entry Certificate, a transferee that acquires such Certificate
pursuant to Regulation S.
"Regulation S Transfer Certificate": A certificate substantially in
the form of Exhibit I-1 or Exhibit I-2 hereto, as applicable.
"Reimbursement Rate": The rate per annum applicable to the accrual
of interest, compounded annually, on Servicing Advances in accordance with
Section 3.03(d) and P&I Advances in accordance with Section 4.03(d), which rate
per annum shall equal the Prime Rate.
"Related Certificates," "Related Uncertificated Lower-Tier
Interests" and "Related Components of Class X Certificates": For each of the
following Classes of Certificates, the related Class of Uncertificated
Lower-Tier Interests and the related Components of Class X Certificates; for the
following Components of the Class X Certificates, the related Class of
Uncertificated Lower-Tier Interests and the related Class of Certificates set
forth below; and for the following Classes of Uncertificated Lower-Tier
Interests, the related Components of the Class X Certificates and the related
Class of Certificates set forth below:
Related Uncertificated Related Components of Class X
Related Certificate Lower-Tier Interest Certificates
---------------------------------------------------------------------------------------------------------------------
Class A-1 Certificate Class LA-1-1 Uncertificated Interest XA-1-1
Class LA-1-2 Uncertificated Interest XA-1-2
Class LA-1-3 Uncertificated Interest XA-1-3
Class LA-1-4 Uncertificated Interest XA-1-4
Class A-1A Certificate Class LA-1A-1 Uncertificated Interest XA-1A-1
Class LA-1A-2 Uncertificated Interest XA-1A-2
Class LA-1A-3 Uncertificated Interest XA-1A-3
Class LA-1A-4 Uncertificated Interest XA-1A-4
Class LA-1A-5 Uncertificated Interest XA-1A-5
Class LA-1A-6 Uncertificated Interest XA-1A-6
Class LA-1A-7 Uncertificated Interest XA-1A-7
Class LA-1A-8 Uncertificated Interest XA-1A-8
Class LA-1A-9 Uncertificated Interest XA-1A-9
Class LA-1A-10 Uncertificated Interest XA-1A-10
Class LA-1A-11 Uncertificated Interest XA-1A-11
Class LA-1A-12 Uncertificated Interest XA-1A-12
Class LA-1A-13 Uncertificated Interest XA-1A-13
Class LA-1A-14 Uncertificated Interest XA-1A-14
Class LA-1A-15 Uncertificated Interest XA-1A-15
Class A-2 Certificate Class LA-2-1 Uncertificated Interest XA-2-1
Class LA-2-2 Uncertificated Interest XA-2-2
Class LA-2-3 Uncertificated Interest XA-2-3
Class LA-2-4 Uncertificated Interest XA-2-4
Class A-3 Certificate Class LA-3-1 Uncertificated Interest XA-3-1
Class LA-3-2 Uncertificated Interest XA-3-2
Class LA-3-3 Uncertificated Interest XA-3-3
Class LA-3-4 Uncertificated Interest XA-3-4
Class LA-3-5 Uncertificated Interest XA-3-5
Class LA-3-6 Uncertificated Interest XA-3-6
Class LA-3-7 Uncertificated Interest XA-3-7
Class A-4A Certificate Class LA-4A-1 Uncertificated Interest XA-4A-1
Class LA-4A-2 Uncertificated Interest XA-4A-2
Class LA-4A-3 Uncertificated Interest XA-4A-3
Class A-4B Certificate Class LA-4B Uncertificated Interest XA-4B
Class A-SB Certificate Class LA-SB-1 Uncertificated Interest XA-SB-1
Class LA-SB-2 Uncertificated Interest XA-SB-2
Class LA-SB-3 Uncertificated Interest XA-SB-3
Class LA-SB-4 Uncertificated Interest XA-SB-4
Class LA-SB-5 Uncertificated Interest XA-SB-5
Class LA-SB-6 Uncertificated Interest XA-SB-6
Class A-J Certificate Class LA-J Uncertificated Interest XA-J
Class B Certificate Class LB Uncertificated Interest XB
Class C Certificate Class LC Uncertificated Interest XC
Class D Certificate Class LD-1 Uncertificated Interest XD-1
Class LD-2 Uncertificated Interest XD-2
Class LD-3 Uncertificated Interest XD-3
Class LD-4 Uncertificated Interest XD-4
Class E Certificate Class LE-1 Uncertificated Interest XE-1
Class LE-2 Uncertificated Interest XE-2
Class F Certificate Class LF-1 Uncertificated Interest XF-1
Class LF-2 Uncertificated Interest XF-2
Class LF-3 Uncertificated Interest XF-3
Class G Certificate Class LG-1 Uncertificated Interest XG-1
Class LG-2 Uncertificated Interest XG-2
Class H Certificate Class LH-1 Uncertificated Interest XH-1
Class LH-2 Uncertificated Interest XH-2
Class LH-3 Uncertificated Interest XH-3
Class J Certificate Class LJ Uncertificated Interest XJ-1
Class K Certificate Class LK-1 Uncertificated Interest XK-1
Class LK-2 Uncertificated Interest XK-2
Class L Certificate Class LL Uncertificated Interest XL
Class M Certificate Class LM Uncertificated Interest XM
Class N Certificate Class LN Uncertificated Interest XN
Class O Certificate Class LO Uncertificated Interest XO
Class NR Certificate Class LNR Uncertificated Interest XNR
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code (or any successor thereto).
"REMIC Administrator": The Paying Agent or any REMIC administrator
appointed pursuant to Section 10.04.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and temporary and final Treasury regulations (or proposed
regulations that would apply by reason of their proposed effective date to the
extent not inconsistent with temporary or final regulations) and any rulings
promulgated thereunder, as the foregoing may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code.
"REO Account": A segregated custodial account or accounts created
and maintained by the Special Servicer pursuant to Section 3.16 on behalf of the
Trustee in trust for the Certificateholders, which shall be entitled "CWCapital
Asset Management LLC, or the applicable successor Special Servicer, as Special
Servicer, for the benefit of Xxxxx Fargo Bank, N.A., as trustee, in trust for
registered Holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2005-LDP3, REO Account."
Any such account or accounts shall be an Eligible Account.
"REO Acquisition": The acquisition for federal income tax purposes
of any REO Property pursuant to Section 3.09.
"REO Disposition": The sale or other disposition of the REO Property
pursuant to Section 3.18.
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The Mortgage Loan deemed for purposes hereof to be
outstanding with respect to each REO Property. Each REO Loan shall be deemed to
be outstanding for so long as the related REO Property remains part of the Trust
Fund and provides for Assumed Scheduled Payments on each Due Date therefor, and
otherwise has the same terms and conditions as its predecessor Mortgage Loan,
including, without limitation, with respect to the calculation of the Mortgage
Rate in effect from time to time (such terms and conditions to be applied
without regard to the default on such predecessor Mortgage Loan). Each REO Loan
shall be deemed to have an initial outstanding principal balance and Stated
Principal Balance equal to the outstanding principal balance and Stated
Principal Balance, respectively, of its predecessor Mortgage Loan as of the date
of the related REO Acquisition. All amounts due and owing in respect of the
predecessor Mortgage Loan as of the date of the related REO Acquisition,
including, without limitation, accrued and unpaid interest, shall continue to be
due and owing in respect of a REO Loan. All amounts payable or reimbursable to
the Master Servicer, the Special Servicer or the Trustee, as applicable, in
respect of the predecessor Mortgage Loan as of the date of the related REO
Acquisition, including, without limitation, any unpaid Special Servicing Fees
and Servicing Fees, additional Trust Fund expenses and any unreimbursed
Advances, together with any interest accrued and payable to the Master Servicer
or the Trustee, as applicable, in respect of such Advances in accordance with
Section 3.03(d) or Section 4.03(d), shall continue to be payable or reimbursable
to the Master Servicer or the Trustee, as applicable, in respect of an REO Loan.
In addition, Unliquidated Advances and Nonrecoverable Advances with respect to
such REO Loan, in each case, that were paid from collections on the Mortgage
Loans and resulted in principal distributed to the Certificateholders being
reduced as a result of the first proviso in the definition of "Principal
Distribution Amount", "Loan Group 1 Principal Distribution Amount" or "Loan
Group 2 Principal Distribution Amount" shall be deemed outstanding until
recovered. Collections in respect of each REO Loan (exclusive of the amounts to
be applied to the payment of, or to be reimbursed to the Master Servicer or the
Special Servicer for the payment of unreimbursed Advances and interest thereon
and the costs of operating, managing, selling, leasing and maintaining the
related REO Property) shall be treated: first, as a recovery of accrued and
unpaid interest on such REO Loan at the related Mortgage Rate in effect from
time to time to, but not including, the Due Date in the Due Period of receipt
(exclusive of any portion that constitutes Excess Interest); second, as a
recovery of Unliquidated Advances with respect to such REO Loan that relate to
Advances and were paid from collections on the Mortgage Loans and resulted in
principal distributed to the Certificateholders being reduced as a result of the
first proviso in the definition of "Principal Distribution Amount", "Loan Group
1 Principal Distribution Amount" or "Loan Group 2 Principal Distribution
Amount"; third, as a recovery of principal of such REO Loan to the extent of its
entire unpaid principal balance; fourth, as a recovery of Nonrecoverable
Advances, with respect to such REO Loan, that relate to Advances and were paid
from collections on the Mortgage Loans and resulted in principal distributed to
the Certificateholders being reduced as a result of the first proviso in the
definition of "Principal Distribution Amount", "Loan Group 1 Principal
Distribution Amount" or "Loan Group 2 Principal Distribution Amount"; and fifth,
in accordance with the Servicing Standards, as a recovery of any other amounts
due and owing in respect of such REO Loan, including, without limitation, (i)
Penalty Charges, (ii) Yield Maintenance Charges and (iii) Excess Interest and
other amounts, in that order; provided, that if the Universal Hotel Portfolio
Mortgage Loan and Universal Hotel Portfolio Companion Notes comprising the
Universal Hotel Portfolio Whole Loan become REO Loans, the treatment of the
foregoing amounts with respect to the Universal Hotel Portfolio Whole Loan shall
be subject to the terms of the Universal Hotel Portfolio Intercreditor Agreement
and the Universal Hotel Portfolio Pooling Agreement.
"REO Loan Accrual Period": With respect to any REO Loan and any Due
Date therefor, the one-month period immediately preceding such Due Date.
"REO Property": A Mortgaged Property acquired by the Special
Servicer on behalf of, and in the name of, the Trustee or a nominee thereof for
the benefit of the Certificateholders (and the related Companion Holder, subject
to the related Intercreditor Agreement, with respect to a Mortgaged Property
securing a Loan Pair) and the Trustee (as holder of the Uncertificated
Lower-Tier Interests) (and also including, if applicable, the Trust Fund's
beneficial interest in the Universal Hotel Portfolio Mortgaged Property acquired
by the Universal Hotel Portfolio Special Servicer on behalf of, and in the name
of, the Universal Hotel Portfolio Trustee or a nominee thereof for the benefit
of the certificateholders under the Universal Hotel Portfolio Trust) 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. References herein to the Special Servicer acquiring,
maintaining, managing, inspecting, insuring, selling or reporting or to
Appraisal Reductions and Final Recovery Determinations with respect to an "REO
Property", shall not include the Trust Fund's beneficial interest in the
Universal Hotel Portfolio Mortgaged Property.
"REO Revenues": All income, rents and profits derived from the
ownership, operation or leasing of any REO Property.
"Request for Release": A release signed by a Servicing Officer of
the Master Servicer or the Special Servicer, as applicable, in the form of
Exhibit E attached hereto.
"Residual Certificate": Any Class R Certificate or Class LR
Certificate issued, authenticated and delivered hereunder.
"Responsible Officer": When used with respect to each of the initial
Trustee or the Paying Agent, any Vice President, Assistant Vice-President,
Assistant Secretary or corporate trust officer in the corporate trust department
of the Trustee or the Global Securities and Trust Services Group of the Paying
Agent, and with respect to any successor Trustee or the Paying Agent, any
officer or assistant officer in the corporate trust department of the Successor
Trustee or the Paying Agent or any other officer of the Trustee or the Paying
Agent customarily performing functions similar to those performed by any of the
above designated officers to whom a particular matter is referred by the Trustee
or the Paying Agent because of such officer's knowledge of and familiarity with
the particular subject.
"Restricted Period": The 40-day period prescribed by Regulation S
commencing on the later of (a) the date upon which Certificates are first
offered to Persons other than the Initial Purchasers and any other distributor
(as such term is defined in Regulation S) of the Certificates and (b) the
Closing Date.
"Revised Rate": With respect to those Mortgage Loans on the Mortgage
Loan Schedule indicated as having a revised rate, the increased interest rate
after the Anticipated Repayment Date (in the absence of a default) for each
applicable Mortgage Loan, as calculated and as set forth in the related Mortgage
Loan.
"Rule 144A": Rule 144A under the Act.
"Rule 144A Book-Entry Certificate": With respect to any Class of
Certificates offered and sold in reliance on Rule 144A, a single, permanent
Book-Entry Certificate, in definitive, fully registered form without interest
coupons.
"S&P": Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., and its successors in interest. If S&P 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 Paying Agent, the Master Servicer and the Special Servicer and
specific ratings of S&P herein referenced shall be deemed to refer to the
equivalent ratings of the party so designated.
"Scheduled Principal Distribution Amount": With respect to any
Distribution Date and the Mortgage Loans, the aggregate of the principal
portions of (a) all Monthly Payments (excluding Balloon Payments and Excess
Interest) due in respect of such Mortgage Loans during or, if and to the extent
not previously received or advanced pursuant to Section 4.03 in respect of a
preceding Distribution Date, prior to, the related Due Period, and all Assumed
Scheduled Payments for the related Due Period, in each case to the extent either
(i) paid by the Mortgagor as of the Determination Date (or, with respect to each
Mortgage Loan with a Due Date occurring or a grace period ending after the
related Determination Date, the related Due Date or last day of such grace
period, as applicable, to the extent received by the Master Servicer as of the
Business Day preceding the related P&I Advance Date) (and not previously
distributed to Certificateholders) or (ii) advanced by the Master Servicer or
the Trustee, as applicable, pursuant to Section 4.03 in respect of such
Distribution Date, and (b) all Balloon Payments to the extent received on or
prior to the related Determination Date (or, with respect to each Mortgage Loan
with a Due Date occurring or a grace period ending after the related
Determination Date, the related Due Date or last day of such grace period, as
applicable, to the extent received by the Master Servicer as of the Business Day
preceding the related P&I Advance Date), and to the extent not included in
clause (a) above.
"Securities Act": The Securities Act of 1933, as it may be amended
from time to time.
"Security Agreement": With respect to any Mortgage Loan, any
security agreement or equivalent instrument, whether contained in the related
Mortgage or executed separately, creating in favor of the holder of such
Mortgage a security interest in the personal property constituting security for
repayment of such Mortgage Loan.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary "out
of pocket" costs and expenses (including attorneys' fees and expenses and fees
of real estate brokers) incurred by the Master Servicer, the Special Servicer or
the Trustee, as applicable, in connection with the servicing and administering
of (a) a Mortgage Loan (and in the case of an AB Mortgage Loan, the related
Companion Loan) (other than the Universal Hotel Portfolio Mortgage Loan) in
respect of which a default, delinquency or other unanticipated event has
occurred or as to which a default is reasonably foreseeable or (b) an REO
Property, including (in the case of each of such clause (a) and clause (b)), but
not limited to, (x) the cost of (i) compliance with the Master Servicer's
obligations set forth in Section 3.03(c), (ii) the preservation, restoration and
protection of a Mortgaged Property, (iii) obtaining any Insurance and
Condemnation Proceeds or any Liquidation Proceeds of the nature described in
clauses (i)-(iv) of the definition of "Liquidation Proceeds," (iv) any
enforcement or judicial proceedings with respect to a Mortgaged Property,
including foreclosures and (v) the operation, leasing, management, maintenance
and liquidation of any REO Property and (y) any amount specifically designated
herein to be paid as a "Servicing Advance". Notwithstanding anything to the
contrary, "Servicing Advances" shall not include allocable overhead of the
Master Servicer or the Special Servicer, such as costs for office space, office
equipment, supplies and related expenses, employee salaries and related expenses
and similar internal costs and expenses or costs and expenses incurred by any
such party in connection with its purchase of a Mortgage Loan or REO Property.
"Servicing Fee": With respect to each Mortgage Loan, Companion Loan
and REO Loan, the fee payable to the Master Servicer pursuant to the first
paragraph of Section 3.11(a).
"Servicing Fee Amount": With respect to the Master Servicer and any
date of determination, the aggregate of the products obtained by multiplying,
for each Mortgage Loan, (a) the Stated Principal Balance of such Mortgage Loan
as of the end of the immediately preceding Due Period and (b) the difference
between the Servicing Fee Rate for such Mortgage Loan over the servicing fee
rate (if any) applicable to such Mortgage Loan as specified in any Sub-Servicing
Agreement related to such Mortgage Loan. With respect to each Sub-Servicer and
any date of determination, the aggregate of the products obtained by
multiplying, for each Mortgage Loan serviced by such Sub-Servicer, (a) the
Stated Principal Balance of such Mortgage Loan as of the end of the immediately
preceding Due Period and (b) the servicing fee rate specified in the related
Sub-Servicing Agreement for such Mortgage Loan.
"Servicing Fee Rate": With respect to each Mortgage Loan and REO
Loan, (and with respect to the Universal Hotel Portfolio Mortgage Loan, solely
for purposes of calculating the Administrative Cost Rate under this Agreement
and not for calculating the Servicing Fee), a rate equal to the per annum rate
set forth on the Mortgage Loan Schedule under the heading "Servicing Fee Rate,"
in each case computed on the basis of the Stated Principal Balance of the
related Mortgage Loan. With respect to each Companion Loan, the rate payable to
the Master Servicer with respect to the related Mortgage Loan as set forth in
the related Intercreditor Agreement. Other than for purposes of calculating the
Administrative Cost Rate under this Agreement, the "Servicing Fee Rate" with
respect to the Universal Hotel Portfolio Mortgage Loan is 0.01% per annum.
"Servicing File": Shall mean a photocopy of all items required to be
included in the Mortgage File, together with each of the following, to the
extent such items were actually delivered to the related Mortgage Loan Seller
with respect to a Mortgage Loan and (to the extent that the identified documents
existed on the Closing Date and the applicable reference to Servicing File
relates to any period after the Closing Date) delivered by the related Mortgage
Loan Seller to the Master Servicer: (i) a copy of any engineering reports,
environmental reports or property condition reports; (ii) other than with
respect to a hotel property (except with respect to tenanted commercial space
within a hotel property), copies of a rent roll and, for any office, retail,
industrial or warehouse property, a copy of all leases and estoppels and
subordination and non-disturbance agreements delivered to the Mortgage Loan
Seller; (iii) copies of related financial statements or operating statements;
(iv) all legal opinions (excluding attorney-client communications between the
Mortgage Loan Seller and its counsel which are privileged communications or
constitute legal or other due diligence analyses), Mortgagor's Certificates and
certificates of hazard insurance and/or hazard insurance policies or other
applicable insurance policies, if any, delivered in connection with the closing
of the Mortgage Loan; (v) a copy of the Appraisal for the related Mortgaged
Property(ies); (vi) the documents that were delivered by or on behalf of the
Mortgagor, which documents were required to be delivered in connection with the
closing of such Mortgage Loan; and (vii) for any Mortgage Loan that the related
Mortgaged Property is leased to a single tenant, a copy of the lease.
"Servicing Officer": Any officer and/or employee of the Master
Servicer or the Special Servicer involved in, or responsible for, the
administration and servicing of the Mortgage Loans, whose name and specimen
signature appear on a list of servicing officers furnished by the Master
Servicer and the Special Servicer to the Paying Agent, the Trustee and the
Depositor on the Closing Date as such list may be amended from time to time
thereafter.
"Servicing-Released Bid": As defined in Section 7.01(c).
"Servicing-Retained Bid": As defined in Section 7.01(c).
"Servicing Standards": As defined in Section 3.01(a).
"Servicing Transfer Event": With respect to any Mortgage Loan or
Companion Loan, the occurrence of any of the following events:
(i) with respect to a Mortgage Loan that is not a Balloon
Loan, a payment default shall have occurred at the original Maturity
Date, or, if the original Maturity Date of such Mortgage Loan or
Companion Loan has been extended, a payment default shall have
occurred at such extended Maturity Date; or
(ii) in the case of a Balloon Payment, such payment is
delinquent and the related Mortgagor has not provided the Master
Servicer (who shall promptly notify the Special Servicer and the
Directing Certificateholder of such delinquency) on or prior to the
related Maturity Date (or the 60th day after the related Maturity
Date with respect to a Mortgage Loan where the Mortgagor has
continued to make its Assumed Scheduled Payments and is diligently
pursuing re-financing) with a bona fide written commitment for
refinancing, reasonably satisfactory in form and substance to the
Master Servicer, which provides that such refinancing will occur
within 120 days after the Maturity Date, provided that if such
refinancing does not occur within such 120-day period, the related
Mortgage Loan will become a Specially Serviced Mortgage Loan at the
end of such 120-day period (or at the end of any shorter period
beyond the date on which that Balloon Payment was due within which
the refinancing is scheduled to occur); or
(iii) any Monthly Payment (other than a Balloon Payment) is
more than 60 days delinquent (unless, in the case of each AB
Mortgage Loan or Mortgage Loan with mezzanine debt, prior to such
Monthly Payment becoming more than 60 days delinquent the holder of
the related Companion Loan or mezzanine debt cures such
delinquency); or
(iv) the Master Servicer or the Special Servicer (in the case
of the Special Servicer, with the consent of the Directing
Certificateholder), as applicable, makes a judgment that a payment
default is imminent and is not likely to be cured by the related
Mortgagor within 60 days; or
(v) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency
or similar law, or the appointment of a conservator, 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, is entered against the related
Mortgagor; provided, that if such decree or order is --------
discharged or stayed within 60 days of being entered, or if, as to a
bankruptcy, the automatic stay is lifted within 60 days of a filing
for relief or the case is dismissed, upon such discharge, stay,
lifting or dismissal such Mortgage Loan or Companion Loan shall no
longer be a Specially Serviced Mortgage Loan (and no Special
Servicing Fees, Workout Fees or Liquidation Fees will be payable
with respect thereto and any such fees actually paid shall be
reimbursed by the Special Servicer); or
(vi) 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
(vii) 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
(viii) a default of which the Master Servicer or the Special
Servicer, as applicable, has notice (other than a failure by such
Mortgagor to pay principal or interest) and which the Master
Servicer or Special Servicer (in the case of the Special Servicer,
with the consent of the Directing Certificateholder) determines in
its good faith reasonable judgment, may materially and adversely
affect the interests of the Certificateholders or the holders of the
related Companion Loan, if applicable, has occurred and remained
unremedied for the applicable grace period specified in the related
Mortgage Loan or Companion Loan documents, other than the failure to
maintain terrorism insurance if such failure constitutes an
Acceptable Insurance Default (or if no grace period is specified for
those defaults which are capable of cure, 60 days); or
(ix) the Master Servicer has received notice of the
foreclosure or proposed foreclosure of any other lien on the related
Mortgaged Property; or
(x) the Master Servicer or Special Servicer (in the case of
the Special Servicer, with the consent of the Directing
Certificateholder) determines that (A) a default (other than as
described in clause (iv) above) under the related Mortgage Loan is
imminent, (B) such default will materially impair the value of the
corresponding Mortgaged Property as security for the related
Mortgage Loan or otherwise materially adversely affect the interests
of Certificateholders (or, with respect to each AB Mortgage Loan,
the holder of the related subordinate Companion Loan) and (C) the
default will continue unremedied for the applicable cure period
under the terms of the related Mortgage Loan or, if no cure period
is specified and the default is capable of being cured, for 30 days
(provided that such 30-day grace period does not apply to a default
that gives rise to immediate acceleration without application of a
grace period under the terms of the related Mortgage Loan); provided
that any determination that a Servicing Transfer Event has occurred
under this clause (x), with respect to any Mortgage Loan solely by
reason of the failure (or imminent failure) of the related Mortgagor
to maintain or cause to be maintained insurance coverage against
damages or losses arising from acts of terrorism, may be made only
by the Special Servicer (with the consent of the Directing
Certificateholder).
provided, if a Companion Loan becomes a Specially Serviced Mortgage Loan, the
related AB Mortgage Loan shall also become a Specially Serviced Mortgage Loan.
If an AB Mortgage Loan becomes a Specially Serviced Mortgage Loan, the related
Companion Loan shall become a Specially Serviced Mortgage Loan. If any Mortgage
Loan in a Crossed Group becomes a Specially Serviced Mortgage Loan, each other
Mortgage Loan in such Crossed Group shall also become a Specially Serviced
Mortgage Loan.
With respect to the Universal Hotel Portfolio Mortgage Loan, the occurrence of a
"Servicing Transfer Event" shall be as defined in the Universal Hotel Portfolio
Pooling Agreement.
"Similar Law": As defined in Section 5.02(c).
"Sole Certificateholder": Any Certificate Owner of a book-entry
Certificate or a Holder of a definitive Certificate holding 100% of the Class
X-1, Class X-2, Class A-1A, Class G, Class H, Class J, Class K, Class L, Class
M, Class N, Class O and Class NR Certificates or, with respect to such Classes
of Certificates an assignment of the voting rights thereof; provided, however,
that the Certificate Balances of the Class A-1, Class A-2, Class A-3, Class
A-4A, Class A-4B, Class A-SB, Class A-J, Class B, Class C and Class D
Certificates have been retired.
"Special Servicer": CWCapital Asset Management LLC, a Massachusetts
limited liability company, and its successors in interest and assigns, or any
successor Special Servicer appointed as allowed herein.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and REO Loan (other than the Universal Hotel Portfolio Mortgage
Loan), the fee payable to the Special Servicer pursuant to the first paragraph
of Section 3.11(b).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and each REO Loan (other than in the case of the
Universal Hotel Portfolio Mortgage Loan), 0.25% per annum computed on the basis
of the Stated Principal Balance of the related Mortgage Loan (including any REO
Loan) or Companion Loan (if provided for under the related Intercreditor
Agreement) in the same manner as interest is calculated on the Specially
Serviced Mortgage Loans.
"Specially Serviced Mortgage Loan": As defined in Section 3.01(a).
"Startup Day": The day designated as such in Section 10.01(b).
"Stated Principal Balance": With respect to any Mortgage Loan, as of
any date of determination, an amount equal to (x) the Cut-off Date Principal
Balance of such Mortgage Loan (or in the case of a Qualified Substitute Mortgage
Loan, the unpaid principal balance of such Mortgage Loan after application of
all scheduled payments of principal and interest due during or prior to the
month of substitution, whether or not received), plus (y) any Mortgage Deferred
Interest added to the principal balance of such Mortgage Loan on or before the
end of the immediately preceding Due Period minus (z) the sum of:
(i) the principal portion of each Monthly Payment due on such
Mortgage Loan after the Cut-off Date (or in the case of a Qualified
Substitute Mortgage Loan, the Due Date in the related month of
substitution), to the extent received from the Mortgagor or advanced
by the Master Servicer;
(ii) all Principal Prepayments received with respect to such
Mortgage Loan after the Cut-off Date (or in the case of a Qualified
Substitute Mortgage Loan, the Due Date in the related month of
substitution);
(iii) the principal portion of all Insurance and Condemnation
Proceeds (to the extent allocable to principal on the related
Mortgage Loan) and Liquidation Proceeds received with respect to
such Mortgage Loan after the Cut-off Date (or in the case of a
Qualified Substitute Mortgage Loan, the Due Date in the related
month of substitution); and
(iv) any reduction in the outstanding principal balance of
such Mortgage Loan resulting from a Deficient Valuation that
occurred prior to the end of the Due Period for the most recent
Distribution Date.
With respect to any REO Loan that is a successor to a Mortgage Loan,
as of any date of determination, an amount equal to (x) the Stated Principal
Balance of the predecessor Mortgage Loan as of the date of the related REO
Acquisition, minus (y) the sum of:
(i) the principal portion of any P&I Advance made with respect
to such REO Loan; and
(ii) the principal portion of all Insurance and Condemnation
Proceeds (to the extent allocable to principal on the related
Mortgage Loan), Liquidation Proceeds and REO Revenues received with
respect to such REO Loan.
A Mortgage Loan or a REO Loan that is a successor to a Mortgage Loan
shall be deemed to be part of the Trust Fund and to have an outstanding Stated
Principal Balance until the Distribution Date on which the payments or other
proceeds, if any, received in connection with a Liquidation Event in respect
thereof are to be (or, if no such payments or other proceeds are received in
connection with such Liquidation Event, would have been) distributed to
Certificateholders.
With respect to any Companion Loan on any date of determination, the
Stated Principal Balance shall equal the unpaid principal balance of such
Companion Loan as of such date.
"Statement to Certificateholders": As defined in Section 4.02(a).
"Subordinate Certificate": Any Class A-J, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O or Class NR Certificate.
"Sub-Servicer": Any Person with which the Master Servicer has
entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The written contract between the Master
Servicer or the Special Servicer, as the case may be, and any Sub-Servicer
relating to servicing and administration of Mortgage Loans as provided in
Section 3.22.
"Substitution Shortfall Amount": With respect to a substitution
pursuant to Section 2.03(b) hereof, an amount equal to the excess, if any, of
the Purchase Price of the Mortgage Loan being replaced calculated as of the date
of substitution over the Stated Principal Balance of the related Qualified
Substitute Mortgage Loan. In the event that one or more Qualified Substitute
Mortgage Loans are substituted (at the same time by the same Mortgage Loan
Seller) for one or more deleted Mortgage Loans, the Substitution Shortfall
Amount shall be determined as provided in the preceding sentence on the basis of
the aggregate Purchase Prices of the Mortgage Loan or Mortgage Loans being
replaced and the aggregate Stated Principal Balances of the related Qualified
Substitute Mortgage Loans.
"Successful Bidder": As defined in Section 7.01(c).
"Tax Returns": The federal income tax returns on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit (REMIC) Income
Tax Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each of the Upper-Tier REMIC and the Lower-Tier REMIC
due to its classification as a REMIC under the REMIC Provisions, and the
applicable federal income tax returns to be filed on behalf of the Grantor
Trust, together with any and all other information, reports or returns that may
be required to be furnished to the Certificateholders or filed with the Internal
Revenue Service or any other governmental taxing authority under any applicable
provisions of federal tax law or Applicable State and Local Tax Law.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit": As defined in Section 5.02(d).
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Transferor Letter": As defined in Section 5.02(d).
"Trust": The trust created hereby and to be administered hereunder.
"Trust Fund": The corpus of the trust created hereby and to be
administered hereunder, consisting of: (i) such Mortgage Loans as from time to
time are subject to this Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date (or with respect to a Qualified
Substitute Mortgage Loan, the Due Date in the month of substitution); (iii) any
REO Property (to the extent of the Trust Fund's interest therein); or the Trust
Fund's beneficial interest in the Mortgaged Property securing the Universal
Hotel Portfolio Whole Loan acquired under the Universal Hotel Portfolio Pooling
Agreement; (iv) all revenues received in respect of any REO Property (to the
extent of the Trust Fund's interest therein); (v) the Master Servicer's, the
Special Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to this
Agreement and any proceeds thereof (to the extent of the Trust Fund's interest
therein); (vi) any Assignments of Leases and any security agreements (to the
extent of the Trust Fund's interest therein); (vii) any letters of credit,
indemnities, guaranties or lease enhancement policies given as additional
security for any Mortgage Loans (to the extent of the Trust Fund's interest
therein); (viii) all assets deposited in the Servicing Accounts (to the extent
of the Trust Fund's interest therein), amounts on deposit in the Certificate
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account, the Interest Reserve Account,
the Gain-on-Sale Reserve Account (to the extent of the Trust Fund's interest in
the Gain-on-Sale Reserve Account) and any REO Account (to the extent of the
Trust Fund's interest in such REO Account), including any reinvestment income,
as applicable; (ix) any Environmental Indemnity Agreements (to the extent of the
Trust Fund's interest therein); (x) the rights and remedies of the Depositor
under each Mortgage Loan Purchase Agreement (to the extent transferred to the
Trustee); (xi) the Uncertificated Lower-Tier Interests; and (xii) the proceeds
of the foregoing (other than any interest earned on deposits in the Lock-Box
Accounts, Cash Collateral Accounts, Escrow Accounts and any Reserve Accounts, to
the extent such interest belongs to the related Mortgagor).
"Trustee": Xxxxx Fargo Bank, N.A., a national banking association in
its capacity as trustee and its successors in interest, or any successor Trustee
appointed as herein provided.
"Trustee Exception Report": As defined in Section 2.02(b).
"Trustee Fee": The fee to be paid to the Trustee as compensation for
the Trustee's activities under this Agreement. The Trustee Fee includes the
Paying Agent Fee. No portion of the Trustee Fee shall be calculated by reference
to any Companion Loan or the principal balance of any Companion Loan.
"Trustee Fee Rate": A rate equal to 0.0011% per annum computed on
the basis of the Stated Principal Balance of the related Mortgage Loan (and in
the same manner as interest is calculated on the related Mortgage Loan) as of
the preceding Distribution Date. The Trustee Fee Rate includes the Paying Agent
Fee Rate.
"Trustee's Direction": As defined in Section 7.01(a).
"Trust-Related Litigation": As defined in Section 3.10(c).
"UCC": The Uniform Commercial Code, as enacted in each applicable
state.
"UCC Financing Statement": A financing statement prepared and filed
pursuant to the UCC, as in effect in the relevant jurisdiction.
"Uncertificated Lower-Tier Interests": Any of the Class LA-1-1,
Class LA-1-2, Class LA-1-3, Class LA-1-4, Class LA-1A-1, Class LA-1A-2, Class
LA-1A-3, Class LA-1A-4, Class LA-1A-5, Class LA-1A-6, Class LA-1A-7, Class
LA-1A-8, Class LA-1A-9, Class LA-1A-10, Class LA-1A-11, Class LA-1A-12, Class
LA-1A-13, Class LA-1A-14, Class LA-1A-15, Class LA-2-1, Class LA-2-2, Class
LA-2-3, Class LA-2-4, Class LA-3-1, Class LA-3-2, Class LA-3-3, Class LA-3-4,
Class LA-3-5, Class LA-3-6, Class LA-3-7, Class LA-4A-1, Class LA-4A-2, Class
LA-4A-3, Class XX-0X, Xxxxx XX-XX-0, Class LA-SB-2, Class LA-SB-3, Class
LA-SB-4, Class LA-SB-5, Class LA-SB-6, Class LA-J, Class LB, Class LC, Class
LD-1, Class LD-2, Class LD-3, Class LD-4, Class LE-1, Class LE-2, Class LF-1,
Class LF-2, Class LF-3, Class LG-1, Class LG-2, Class LH-1, Class LH-2, Class
LH-3, Class LJ, Class LK-1, Class LK-2, Class LL, Class LM, Class LN, Class LO
and Class LNR Uncertificated Interests.
"Underwriters": X.X. Xxxxxx Securities Inc., Nomura Securities
International, Inc., ABN AMRO Incorporated and Credit Suisse First Boston LLC.
"Uninsured Cause": Any cause of damage to property subject to a
Mortgage such that the complete restoration of such property is not fully
reimbursable by the hazard insurance policies or flood insurance policies
required to be maintained pursuant to Section 3.07.
"Universal Hotel Portfolio A Notes": Collectively, the Universal
Hotel Portfolio Mortgage Loan and the Universal Hotel Portfolio Senior Companion
Notes.
"Universal Hotel Portfolio A-1 Note": With respect to the Universal
Hotel Portfolio Whole Loan, the related promissory note made by the related
Mortgagor and secured by the Mortgage on the Universal Hotel Portfolio Mortgaged
Property and designated as promissory note A-1, which is not included in the
Trust and which is senior in right of payment to the Universal Hotel Portfolio B
Notes and pari passu in right of payment to the Universal Hotel Portfolio
Mortgage Loan, the Universal Hotel Portfolio A-2 Note, the Universal Hotel
Portfolio A-3 Note and the Universal Hotel Portfolio A-4 Note to the extent set
forth in the related Mortgage Loan documents and as provided in the Universal
Hotel Portfolio Intercreditor Agreement.
"Universal Hotel Portfolio A-2 Note": With respect to the Universal
Hotel Portfolio Whole Loan, the related promissory note made by the related
Mortgagor and secured by the Mortgage on the Universal Hotel Portfolio Mortgaged
Property and designated as promissory note A-2, which is not included in the
Trust and which is senior in right of payment to the Universal Hotel Portfolio B
Notes and pari passu in right of payment to the Universal Hotel Portfolio
Mortgage Loan, the Universal Hotel Portfolio A-1 Note, the Universal Hotel
Portfolio A-3 Note and the Universal Hotel Portfolio A-4 Note to the extent set
forth in the related Mortgage Loan documents and as provided in the Universal
Hotel Portfolio Intercreditor Agreement.
"Universal Hotel Portfolio A-3 Note": With respect to the Universal
Hotel Portfolio Whole Loan, the related promissory note made by the related
Mortgagor and secured by the Mortgage on the Universal Hotel Portfolio Mortgaged
Property and designated as promissory note A-3, which is not included in the
Trust and which is senior in right of payment to the Universal Hotel Portfolio B
Notes and pari passu in right of payment to the Universal Hotel Portfolio
Mortgage Loan, the Universal Hotel Portfolio A-1 Note, the Universal Hotel
Portfolio A-2 Note and the Universal Hotel Portfolio A-4 Note to the extent set
forth in the related Mortgage Loan documents and as provided in the Universal
Hotel Portfolio Intercreditor Agreement.
"Universal Hotel Portfolio A-4 Note": With respect to the Universal
Hotel Portfolio Whole Loan, the related promissory note made by the related
Mortgagor and secured by the Mortgage on the Universal Hotel Portfolio Mortgaged
Property and designated as promissory note A-4, which is not included in the
Trust and which is senior in right of payment to the Universal Hotel Portfolio B
Notes and pari passu in right of payment to the Universal Hotel Portfolio
Mortgage Loan, the Universal Hotel Portfolio A-1 Note, the Universal Hotel
Portfolio A-2 Note and the Universal Hotel Portfolio A-3 Note to the extent set
forth in the related Mortgage Loan documents and as provided in the Universal
Hotel Portfolio Intercreditor Agreement.
"Universal Hotel Portfolio B Noteholder": A holder of a Universal
Hotel Portfolio B Note.
"Universal Hotel Portfolio B Notes": With respect to the Universal
Hotel Portfolio Whole Loan, the related promissory notes made by the related
Mortgagor and secured by the Mortgage on the Universal Hotel Portfolio Mortgaged
Property and designated as promissory note B-1 and promissory note B-2. The
Universal Hotel Portfolio B Notes are included in the Trust and are subordinate
in right of payment to the Universal Hotel Portfolio A Notes to the extent set
forth in the related Mortgage Loan documents and as provided in the Universal
Hotel Portfolio Intercreditor Agreement.
"Universal Hotel Portfolio Companion Noteholders": The Universal
Hotel Portfolio Senior Companion Noteholders and the Universal Hotel Portfolio B
Noteholders.
"Universal Hotel Portfolio Companion Notes": The Universal Hotel
Portfolio Senior Companion Notes and the Universal Hotel Portfolio B Notes.
"Universal Hotel Portfolio Control Appraisal Event": A "Universal
Hotel Portfolio Control Appraisal Event" will exist with respect to the
Universal Hotel Portfolio Whole Loan, if and for so long as a "Control Appraisal
Event" has occurred and is continuing pursuant to the Universal Hotel Portfolio
Intercreditor Agreement.
"Universal Hotel Portfolio Event of Default": An "Event of Default"
as defined under the Universal Hotel Portfolio Whole Loan documents.
"Universal Hotel Portfolio Intercreditor Agreement": The
intercreditor agreement, by and among the holders of the Universal Hotel
Portfolio A Notes and the holders of the Universal Hotel Portfolio B Notes,
relating to the relative rights of such holders of the Universal Hotel Portfolio
Whole Loan, as the same may be further amended in accordance with the terms
thereof.
"Universal Hotel Portfolio Mortgage Loan": With respect to the
Universal Hotel Portfolio Whole Loan, the Mortgage Loan that is included in the
Trust (identified as Mortgage Loan No. 2 on the Mortgage Loan Schedule), which
is designated as promissory note A-5 and is senior in right of payment to the
related Universal Hotel Portfolio B Notes and pari passu in right of payment
with the Universal Hotel Portfolio A-1 Note, the Universal Hotel Portfolio A-2
Note, the Universal Hotel Portfolio A-3 Note and the Universal Hotel Portfolio
A-4 Note to the extent set forth in the Universal Hotel Portfolio Whole Loan and
as provided in the Universal Hotel Portfolio Intercreditor Agreement.
"Universal Hotel Portfolio Mortgaged Property": The Mortgaged
Property which secures the Universal Hotel Portfolio Whole Loan.
"Universal Hotel Portfolio Paying Agent": The "paying agent" under
the Universal Hotel Portfolio Pooling Agreement, which as of the date hereof is
LaSalle Bank National Association.
"Universal Hotel Portfolio Pooling Agreement": The (i) pooling and
servicing agreement dated as of July 29, 2005 among the Depositor, as depositor,
GMAC Commercial Mortgage Corporation, as master servicer, X.X. Xxxxxx Company,
Inc., as special servicer, LaSalle Bank National Association, as trustee and
paying agent, and ABN AMRO Bank N.V., as fiscal agent, as from time to time
amended, supplemented or modified relating to the issuance of the X.X. Xxxxxx
Commercial Mortgage Securities Corp. Commercial Mortgage Pass-Through
Certificates, Series 2005-CIBC12 or (ii) any successor pooling and servicing
agreement entered into pursuant to the Universal Hotel Portfolio Intercreditor
Agreement.
"Universal Hotel Portfolio Master Servicer": The "master servicer"
under the Universal Hotel Portfolio Pooling Agreement, which as of the date
hereof is GMAC Commercial Mortgage Corporation.
"Universal Hotel Portfolio Senior Companion Noteholders": The
holders of the Universal Hotel Portfolio Senior Companion Notes.
"Universal Hotel Portfolio Senior Companion Notes": The Universal
Hotel Portfolio A-1 Note, the Universal Hotel Portfolio A-2 Note, the Universal
Hotel Portfolio A-3 Note and Universal Hotel Portfolio A-4 Note.
"Universal Hotel Portfolio Senior Notes": The Universal Hotel
Portfolio Mortgage Loan, the Universal Hotel Portfolio A-1 Note, the Universal
Hotel Portfolio A-2 Note, the Universal Hotel Portfolio A-3 Note and the
Universal Hotel Portfolio A-4 Note.
"Universal Hotel Portfolio Trust": X.X. Xxxxxx Xxxxx Commercial
Mortgage Securities Corp. Commercial Mortgage Pass-Through Certificates, Series
2005-CIBC12.
"Universal Hotel Portfolio Whole Loan": The Universal Hotel
Portfolio Mortgage Loan, together with the Universal Hotel Portfolio B Notes and
the Universal Hotel Portfolio Senior Companion Notes, each of which is secured
by the same Mortgage on the Universal Hotel Portfolio Mortgaged Property.
References herein to the Universal Hotel Portfolio Whole Loan shall be construed
to refer to the aggregate indebtedness under the Universal Hotel Portfolio A
Notes and the Universal Hotel Portfolio B Notes.
"Unliquidated Advance": Any Advance previously made by a party
hereto that has been previously reimbursed, as between the Person that made the
Advance hereunder, on the one hand, and the Trust Fund, on the other, as part of
a Workout-Delayed Reimbursement Amount pursuant to subsections (iii) and (iv) of
Section 3.05(a) but that has not been recovered from the Mortgagor or otherwise
from collections on or the proceeds of the Mortgage Loan or REO Property in
respect of which the Advance was made.
"Unscheduled Principal Distribution Amount": With respect to any
Distribution Date and the Mortgage Loans, the aggregate of (a) all Principal
Prepayments received on such Mortgage Loans on or prior to the Determination
Date (or, with respect to each Mortgage Loan with a Due Date occurring or a
grace period ending after the related Determination Date, the related Due Date
or last day of such grace period, as applicable, to the extent received by the
Master Servicer as of the Business Day preceding the related P&I Advance Date)
and (b) the principal portions of all Liquidation Proceeds, Insurance and
Condemnation Proceeds (net of Special Servicing Fees, Liquidation Fees, accrued
interest on Advances and other additional Trust Fund expenses incurred in
connection with the related Mortgage Loan) and, if applicable, REO Revenues
received with respect to such Mortgage Loans and any REO Loans on or prior to
the related Determination Date (or, with respect to each Mortgage Loan with a
Due Date occurring or a grace period ending after the related Determination
Date, the related Due Date or last day of such grace period, as applicable, to
the extent received by the Master Servicer as of the Business Day preceding the
related P&I Advance Date), but in each case only to the extent that such
principal portion represents a recovery of principal for which no advance was
previously made pursuant to Section 4.03 in respect of a preceding Distribution
Date.
"Upper-Tier Distribution Account": The segregated account or
accounts (or a subaccount of the Distribution Account) created and maintained by
the Paying Agent pursuant to Section 3.04(b) in trust for the
Certificateholders, which shall be entitled "LaSalle Bank National Association,
as Paying Agent, in trust for the registered Holders of X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 0000-XXX0, Xxxxx-Xxxx Distribution Account." Any such
account or accounts shall be an Eligible Account (or a subaccount of the
Distribution Account).
"Upper-Tier REMIC": One of the two separate REMICs comprising the
Trust Fund, the assets of which consist of the Uncertificated Lower-Tier
Interests and such amounts as shall from time to time be held in the Upper-Tier
Distribution Account.
"U.S. Dollars": Lawful money of the United States of America.
"U.S. Person": A citizen or resident of the United States, a
corporation or partnership (except to the extent provided in applicable Treasury
Regulations) or other entity created or organized in, or under the laws of, the
United States, any State thereof or the District of Columbia, including any
entity treated as a corporation or partnership for federal income tax purposes,
an estate whose income is subject to United States federal income tax regardless
of its source or a trust if a court within the United States is able to exercise
primary supervision over the administration of such trust, and one or more such
U.S. Persons have the authority to control all substantial decisions of such
trust (or, to the extent provided in applicable Treasury Regulations, certain
trusts in existence on August 20, 1996 which are eligible to elect to be treated
as U.S. Persons).
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times during the term
of this Agreement, the Voting Rights shall be allocated among the various
Classes of Certificateholders as follows: (i) 4% in the case of the Class X
Certificates (allocated pro rata, between the Class X-1 and Class X-2
Certificates based upon their Class Notional Amounts) and (ii) in the case of
any other Class of Regular Certificates (other than the Class X certificates) a
percentage equal to the product of 96% and a fraction, the numerator of which is
equal to the aggregate Certificate Balance of such Class, in each case,
determined as of the Distribution Date immediately preceding such time, and the
denominator of which is equal to the aggregate Certificate Balance of the
Regular Certificates (other than the Class X Certificates), each determined as
of the Distribution Date immediately preceding such time. None of the Class S
Certificates, the Class R Certificates and the Class LR Certificates will be
entitled to any Voting Rights. Voting Rights allocated to a Class of
Certificateholders shall be allocated among such Certificateholders in
proportion to the Percentage Interests evidenced by their respective
Certificates. Appraisal Reductions shall not result in a change in the Class
Voting Rights of any Class of Regular Certificates.
"Weighted Average Net Mortgage Rate": With respect to any
Distribution Date, the weighted average of the applicable Net Mortgage Rates of
the Mortgage Loans as of the first day of the related Due Period, weighted on
the basis of their respective Stated Principal Balances as of the first day of
such Due Period (after giving effect to any payments received during any
applicable grace period).
"Westlink Shopping Center Deposit Amount": $4,422.30.
"Westlink Shopping Center Principal Deposit Amount": $4,400.26.
"Withheld Amounts": As defined in Section 3.25(a).
"Workout-Delayed Reimbursement Amounts": With respect to any
Mortgage Loan, the amount of any Advances made with respect to such Mortgage
Loan on or before the date such Mortgage Loan becomes (or, but for the making of
three Monthly Payments under its modified terms, would then constitute) a
Corrected Mortgage Loan, together with (to the extent accrued and unpaid)
interest on such Advances, to the extent that (i) such Advance (and accrued and
unpaid interest thereon) is not reimbursed to the Person who made such Advance
on or before the date, if any, on which such Mortgage Loan becomes a Corrected
Mortgage Loan and (ii) the amount of such Advance (and accrued and unpaid
interest thereon) becomes an obligation of the Mortgagor to pay such amount
under the terms of the modified loan documents. That any amount constitutes all
or a portion of any Workout-Delayed Reimbursement Amount shall not in any manner
limit the right of any Person hereunder to determine in the future that such
amount instead constitutes a Nonrecoverable Advance.
"Workout Fee": The fee paid to the Special Servicer with respect to
each Corrected Mortgage Loan (other than with respect to the Universal Hotel
Portfolio Mortgage Loan).
"Workout Fee Rate": A fee of 1.00%, with respect to each Corrected
Mortgage Loan of each collection (other than Penalty Charges and Excess
Interest) of interest and principal (other than any amount for which a
Liquidation Fee would be paid), including (i) Monthly Payments, (ii) Balloon
Payments and (iii) payments (other than those included in clause (i) or (ii) of
this definition) at maturity, received on each Corrected Mortgage Loan for so
long as it remains a Corrected Mortgage Loan.
"Yield Maintenance Charge": With respect to any Mortgage Loan or REO
Loan, the yield maintenance charge or prepayment premium set forth in the
related Mortgage Loan documents; provided, that no amounts shall be considered
Yield Maintenance Charges until there has been a full recovery of all principal,
interest and other amounts due under the related Mortgage Loan.
Section 1.02 Certain Calculations. Unless otherwise specified
herein, for purposes of determining amounts with respect to the Certificates and
the rights and obligations of the parties hereto, the following provisions shall
apply:
(i) All calculations of interest (other than as provided in the
Mortgage Loan documents) provided for herein shall be made on the basis of
a 360-day year consisting of twelve 30-day months.
(ii) Any Mortgage Loan payment is deemed to be received on the date
such payment is actually received by the Master Servicer, the Special
Servicer, the Paying Agent or the Trustee; provided, however, that for
purposes of calculating distributions on the Certificates, Principal
Prepayments with respect to any Mortgage Loan are deemed to be received on
the date they are applied in accordance with the Servicing Standards
consistent with the terms of the related Mortgage Note and Mortgage to
reduce the outstanding principal balance of such Mortgage Loan on which
interest accrues.
(iii) Any reference to the Certificate Balance of any Class of
Certificates on or as of a Distribution Date shall refer to the
Certificate Balance of such Class of Certificates on such Distribution
Date after giving effect to (a) any distributions made on such
Distribution Date pursuant to Section 4.01(a), (b) any Collateral Support
Deficit allocated to such Class of Certificates on the immediately
preceding Distribution Date pursuant to Section 4.04, (c) the addition of
any Certificate Deferred Interest allocated to such Class of Certificates
and added to such Certificate Balance pursuant to Section 4.06(b) and (d)
any recoveries on the related Mortgage Loan of Nonrecoverable Advances
(plus interest thereon) that were previously reimbursed from principal
collections on the Mortgage Loans that resulted in a reduction of the
Principal Distribution Amount, Loan Group 1 Principal Distribution Amount
or Loan Group 2 Principal Distribution Amount, which recoveries are
allocated to such Class of Certificates and added to the Certificate
Balance pursuant to Section 4.04 (a).
(iv) For purposes of calculations required herein, Excess Interest
shall not be added to the outstanding principal balance of the Mortgage
Loans notwithstanding that the related Loan Documents may provide
otherwise.
[End of Article I]
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans. (a) The Depositor,
concurrently with the execution and delivery hereof, does hereby establish a
trust, appoint the Trustee as trustee of the trust, assign, sell, transfer and
convey to the Trustee, in trust, without recourse, for the benefit of the
Certificateholders and the Trustee (as holder of the Uncertificated Lower-Tier
Interests) all the right, title and interest of the Depositor, including any
security interest therein for the benefit of the Depositor, in, to and under (i)
the Mortgage Loans identified on the Mortgage Loan Schedule, (ii) Sections 1, 2,
3, 4, 5, 6(a) (excluding clause (viii) of Section 6(a)), 6(c), 6(d), 6(e), 6(f),
6(g), 10, 11, 13, 14, 15, 17, 18 and 19 of each of the Mortgage Loan Purchase
Agreements, (iii) the Intercreditor 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 Mortgage
Loans (other than (i) payments of principal and interest due and payable on the
Mortgage Loans on or before the Cut-off Date; (ii) prepayments of principal
collected on or before the Cut-off Date and (iii) with respect to those Mortgage
Loans that were closed in July 2005 but have their first Due Date in September
2005, any interest amounts relating to the period prior to the Cut-off Date).
Such assignment of the Universal Hotel Portfolio Mortgage Loan, and, the right
to service such Mortgage Loan, are further subject to the terms and conditions
of the Universal Hotel Portfolio Pooling Agreement and the Universal Hotel
Portfolio Intercreditor Agreement. The transfer of the Mortgage Loans and the
related rights and property accomplished hereby is absolute and, notwithstanding
Section 11.07, is intended by the parties to constitute a sale. In connection
with the assignment to the Trustee of Sections 1, 2, 3, 4, 5, 6(a) (excluding
clause (viii) of Section 6(a)), 6(c), 6(d), 6(e), 6(f), 6(g), 10, 11, 13, 14,
15, 17, 18 and 19 of each of the Mortgage Loan Purchase Agreements, it is
intended that the Trustee get the benefit of Sections 10, 11 and 14 thereof in
connection with any exercise of rights under the assigned Sections, and the
Depositor shall use its best efforts to make available to the Trustee the
benefits of Sections 10, 11 and 14 in connection therewith.
(b) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed, each of the Mortgage Loan Sellers pursuant to the
applicable Mortgage Loan Purchase Agreement to deliver to and deposit with, or
cause to be delivered to and deposited with, the Trustee or a Custodian
appointed thereby, on or before the Closing Date, the Mortgage File for each
Mortgage Loan so assigned, with copies to the Master Servicer. If the applicable
Mortgage Loan Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, the original Mortgage Note, the delivery requirements of the
applicable Mortgage Loan Purchase Agreement and this Section 2.01(b) shall be
deemed to have been satisfied; provided, such Mortgage Loan Seller shall deliver
a copy or duplicate original of such Mortgage Note, together with an affidavit
certifying that the original thereof has been lost or destroyed and indemnifying
the Trustee. If the applicable Mortgage Loan Seller cannot deliver, or cause to
be delivered, as to any Mortgage Loan, any of the documents and/or instruments
referred to in clauses (ii), (iv), (viii), (xi) and (xii) of the definition of
"Mortgage File," with evidence of filing or recording thereon (if intended to be
recorded or filed), solely because of a delay caused by the public filing or
recording office where such document or instrument has been delivered for filing
or recordation, the delivery requirements of the applicable Mortgage Loan
Purchase Agreement and this Section 2.01(b) shall be deemed to have been
satisfied on a provisional basis as of the Closing Date as to such non-delivered
document or instrument, and such non-delivered document or instrument shall be
deemed to have been included in the Mortgage File, if a duplicate original or a
photocopy of such non-delivered document or instrument (certified by the
applicable public filing or recording office, the applicable title insurance
company or the applicable Mortgage Loan Seller to be a true and complete copy of
the original thereof submitted for filing or recording) is delivered to the
Trustee or a Custodian appointed thereby on or before the Closing Date, and
either the original of such non-delivered document or instrument, or a photocopy
thereof (certified by the appropriate county recorder's office, in the case of
the documents and/or instruments referred to in clause (ii) of the definition of
"Mortgage File," to be a true and complete copy of the original thereof
submitted for recording), with evidence of filing or recording thereon, is
delivered to the Trustee or such Custodian within 180 days of the Closing Date
(or within such longer period, not to exceed 18 months, after the Closing Date
as the Trustee may consent to, which consent shall not be unreasonably withheld
so long as the applicable Mortgage Loan Seller is, as certified in writing to
the Trustee no less often than every 90 days, attempting in good faith to obtain
from the appropriate public filing office or county recorder's office such
original or photocopy). If the applicable Mortgage Loan Seller cannot deliver,
or cause to be delivered, as to any Mortgage Loan, any of the documents and/or
instruments referred to in clauses (ii), (iv), (viii), (xi) and (xii) of the
definition of "Mortgage File," with evidence of filing or recording thereon, for
any other reason, including, without limitation, that such non-delivered
document or instrument has been lost or destroyed, the delivery requirements of
the applicable Mortgage Loan Purchase Agreement and this Section 2.01(b) shall
be deemed to have been satisfied as to such non-delivered document or
instrument, and such non-delivered document or instrument shall be deemed to
have been included in the Mortgage File, if a photocopy of such non-delivered
document or instrument (with evidence of filing or recording thereon and
certified in the case of the documents and/or instruments referred to in clause
(ii) of the definition of "Mortgage File" by the appropriate county recorder's
office to be a true and complete copy of the original thereof submitted for
recording) is delivered to the Trustee or a Custodian appointed thereby on or
before the Closing Date. Neither the Trustee nor any Custodian shall in any way
be liable for any failure by any Mortgage Loan Seller or the Depositor to comply
with the delivery requirements of the related Mortgage Loan Purchase Agreement
and this Section 2.01(b). If, on the Closing Date as to any Mortgage Loan, the
applicable Mortgage Loan Seller cannot deliver in complete and recordable form
(or form suitable for filing or recording, if applicable) any one of the
assignments in favor of the Trustee referred to in clause (iii), (v) (to the
extent not already assigned pursuant to clause (iii)) or (xi) of the definition
of "Mortgage File" solely because of the unavailability of filing or recording
information as to any existing document or instrument and/or because such
assignments are assignments in blank and have not been completed in favor of the
Trustee as specified in the related clause(s) of the definition of "Mortgage
File," such Mortgage Loan Seller may provisionally satisfy the delivery
requirements of the related Mortgage Loan Purchase Agreement and this Section
2.01(b) by delivering with respect to such Mortgage Loan on the Closing Date an
omnibus assignment of such Mortgage Loan substantially in the form of Exhibit H;
provided, that all required original assignments with respect to such Mortgage
Loan, in fully complete and recordable form (or form suitable for filing or
recording, if applicable), are delivered to the Trustee or its Custodian within
180 days after the Closing Date (or within such longer period, not to exceed 18
months, as the Trustee in its discretion may consent to, which consent shall not
be unreasonably withheld so long as the applicable Mortgage Loan Seller is, as
certified in writing to the Trustee no less often than every 90 days, attempting
in good faith to obtain from the appropriate public filing office or county
recorder's office the applicable filing or recording information as to the
related document or instrument). Notwithstanding anything herein to the
contrary, with respect to letters of credit, the applicable Mortgage Loan Seller
shall deliver to the Master Servicer and the Master Servicer shall hold the
original (or copy, if such original has been submitted by the applicable
Mortgage Loan Seller to the issuing bank to effect an assignment or amendment of
such letter of credit (changing the beneficiary thereof to the Trust (in care of
the Master Servicer)) that may be required in order for the Master Servicer to
draw on such letter of credit on behalf of the Trust in accordance with the
applicable terms thereof and/or of the related Mortgage Loan documents) and the
applicable Mortgage Loan Seller shall be deemed to have satisfied the delivery
requirements of the related Mortgage Loan Purchase Agreement and this Section
2.01(b) by delivering with respect to any letter of credit a copy thereof to the
Trustee together with an officer's certificate of the applicable Mortgage Loan
Seller certifying that such document has been delivered to the Master Servicer
or an officer's certificate from the Master Servicer certifying that it holds
the letter(s) of credit pursuant to this Section 2.01(b), one of which shall be
delivered to the Trustee on the Closing Date. If a letter of credit referred to
in the previous sentence is not in a form that would allow the Master Servicer
to draw on such letter of credit on behalf of the Trust in accordance with the
applicable terms thereof and/or of the related Mortgage Loan documents, the
applicable Mortgage Loan Seller shall deliver the appropriate assignment or
amendment documents (or copies of such assignment or amendment documents if the
related Mortgage Loan Seller has submitted the originals to the related issuer
of such letter of credit for processing) to the Master Servicer within 30 days
of the Closing Date. If not otherwise paid by the related Mortgagor, the
applicable Mortgage Loan Seller shall pay any costs of assignment or amendment
of such letter(s) of credit required in order for the Master Servicer to draw on
such letter(s) of credit on behalf of the Trust and shall cooperate with the
reasonable requests of the Master Servicer or the Special Servicer, as
applicable, in connection with effectuating a draw under any such letter of
credit prior to the date such letter of credit is assigned or amended in order
that it may be drawn by the Master Servicer on behalf of the Trust.
(c) Pursuant to each Mortgage Loan Purchase Agreement, the related
Mortgage Loan Seller is required at its sole cost and expense, to itself, or to
engage a third party to, put each Assignment of Mortgage, each assignment of
Assignment of Leases and each assignment of each UCC Financing Statement
("Assignments" and, individually, "Assignment") relating to the Mortgage Loans
conveyed by it under the applicable Mortgage Loan Purchase Agreement in proper
form for filing or recording, as applicable, and to submit such Assignments for
filing or recording, as the case may be, in the applicable public filing or
recording office, and on the Closing Date, such Mortgage Loan Seller may deliver
one (1) omnibus assignment for all such Mortgage Loans to the Trustee or its
Custodian as provided in Section 2.01(b). Except under the circumstances
provided for in the last sentence of this subsection (c), the related Mortgage
Loan Seller will itself, or a third party at such Mortgage Loan Seller's expense
will, promptly (and in any event within 120 days after the later of the Closing
Date and the Trustee's actual receipt of the related documents and the necessary
recording and filing information) cause to be submitted for recording or filing,
as the case may be, in the appropriate public office for real property records
or UCC Financing Statements, as appropriate, each assignment to the Trustee
referred to in clauses (iii) and (v) of the definition of "Mortgage File" and
each UCC assignment to the Trustee referred to in clause (xi) of the definition
of "Mortgage File." Each such Assignment submitted for recording shall reflect
that it should be returned by the public recording office to the Trustee or its
designee following recording (or to the agent of the Mortgage Loan Seller who
will then be responsible for delivery of the same to the Trustee or its
designee), and each such UCC assignment submitted for recording or filing shall
reflect that the file copy thereof should be returned to the Trustee or its
designee following recording or filing (or to the agent of the Mortgage Loan
Seller who will then be responsible for delivery of the same to the Trustee or
its designee). If any such document or instrument is determined to be incomplete
or not to meet the recording or filing requirements of the jurisdiction in which
it is to be recorded or filed, or is lost by the public office or returned
unrecorded or unfiled, as the case may be, because of a defect therein, on or
about 180 days after the Closing Date, the related Mortgage Loan Seller or its
designee shall prepare, at its own expense, a substitute therefor or cure such
defect, as the case may be, and thereafter the Mortgage Loan Seller or its
designee shall, at the expense of the related Mortgage Loan Seller, upon receipt
thereof cause the same to be duly recorded or filed, as appropriate. If, by the
first anniversary of the Closing Date, the Trustee has not received confirmation
of the recording or filing as the case may be, of any such Assignment, it shall
so advise the related Mortgage Loan Seller who may then pursue such confirmation
itself or request that the Trustee pursue such confirmation at the related
Mortgage Loan Seller's expense, and upon such a request and provision for
payment of such expenses satisfactory to the Trustee, the Trustee, at the
expense of the applicable Mortgage Loan Seller, shall cause a search of the land
records of each applicable jurisdiction or of the records of the offices of the
applicable Secretary of State for confirmation that the Assignment appears in
such records and retain a copy of such confirmation in the related Mortgage
File. In the event that confirmation of the recording or filing of an Assignment
cannot be obtained, the Trustee or the related Mortgage Loan Seller, as
applicable, shall promptly inform the other and the Trustee shall provide such
Mortgage Loan Seller with a copy of the Assignment and request the preparation
of a new Assignment. The related Mortgage Loan Seller shall pay the expenses for
the preparation of replacement Assignments for any Assignments which, having
been properly submitted for filing or recording to the appropriate governmental
office by the Trustee, fail to appear of record and must be resubmitted.
Notwithstanding the foregoing, there shall be no requirement to record any
assignment to the Trustee referred to in clause (iii) or (v) of the definition
of "Mortgage File," or to file any UCC-3 to the Trustee referred to in clause
(xi) of the definition of "Mortgage File," in those jurisdictions where, in the
written opinion of local counsel (which opinion shall be an expense of the
related Mortgage Loan Seller) acceptable to the Depositor and the Trustee, such
recordation and/or filing is not required to protect the Trustee's interest in
the related Mortgage Loans against sale, further assignment, satisfaction or
discharge by the related Mortgage Loan Seller, the Master Servicer, the Special
Servicer, any Sub-Servicer or the Depositor.
(d) All documents and records in the Depositor's or the applicable
Mortgage Loan Seller's possession relating to the Mortgage Loans (including
financial statements, operating statements and any other information provided by
the respective Mortgagor from time to time, but excluding the applicable
Mortgage Loan Seller's internal communications (including such communications
between the Mortgage Loan Seller and its Affiliates) and underwriting analysis
(including documents prepared by the applicable Mortgage Loan Seller or any of
its Affiliates for such purposes), draft documents, attorney-client
communications which are privileged communications or constitute legal or other
due diligence analyses and credit underwriting or due diligence analyses or
data) that (i) are not required to be a part of a Mortgage File in accordance
with the definition thereof and (ii) are reasonably necessary for the servicing
of each such Mortgage Loan, together with copies of all documents in each
Mortgage File, shall be delivered by the Depositor or the applicable Mortgage
Loan Seller to the Master Servicer within 5 Business Days after the Closing Date
and shall be held by the Master Servicer on behalf of the Trustee in trust for
the benefit of the Certificateholders (and as holder of the Uncertificated
Lower-Tier Interests) and, if applicable, on behalf of the related Companion
Holder. Such documents and records shall be any documents and records (with the
exception of any items excluded under the immediately preceding sentence) that
would otherwise be a part of the Servicing File.
(e) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall deliver, and hereby represents and
warrants that it has delivered, to the Trustee and the Master Servicer, on or
before the Closing Date, a fully executed original counterpart of each of the
Mortgage Loan Purchase Agreements, as in full force and effect, without
amendment or modification, on the Closing Date.
(f) The Depositor shall use its best efforts to require that,
promptly after the Closing Date, but in all events within three Business Days
after the Closing Date, each of the Mortgage Loan Sellers shall cause all funds
on deposit in escrow accounts maintained with respect to the Mortgage Loans
transferred by such Mortgage Loan Seller, whether such accounts are held in the
name of the applicable Mortgage Loan Seller or any other name to be transferred
to the Master Servicer (or a Sub-Servicer) for deposit into Servicing Accounts.
(g) The Paying Agent hereby acknowledges the receipt by it of the
Closing Date Deposit Amount and the Westlink Shopping Center Deposit Amount. The
Paying Agent shall hold such Closing Date Deposit Amount and the Westlink
Shopping Center Deposit Amount in the Distribution Account and shall include the
Closing Date Deposit Amount and the Westlink Shopping Center Deposit Amount in
the Available Distribution Amount for the initial Distribution Date. The Closing
Date Deposit Amount and the Westlink Shopping Center Deposit Amount shall remain
uninvested.
Section 2.02 Acceptance by Trustee. (a) The Trustee, by the
execution and delivery of this Agreement (1) acknowledges receipt by it or a
Custodian on its behalf, subject to the provisions of Section 2.01 and the
further review provided for in this Section 2.02 and to any exceptions noted on
the Trustee Exception Report, in good faith and without notice of any adverse
claim, of the applicable documents specified in clause (i), (ii), (ix), (xv),
(xvi) (or, with respect to clause (xvi), a copy of such letter of credit and an
officer's certificate as contemplated by the third to the last sentence of
Section 2.01(b) hereof) and (xxiii) of the definition of "Mortgage File" with
respect to each Mortgage Loan, of a fully executed original counterpart of each
of the Mortgage Loan Purchase Agreements, and of all other assets included in
the Trust Fund and (2) declares (a) that it or a Custodian on its behalf holds
and will hold such documents and the other documents delivered or caused to be
delivered by the Mortgage Loan Sellers that constitute the Mortgage Files, and
(b) that it holds and will hold such other assets included in the Trust Fund, in
trust for the exclusive use and benefit of all present and future
Certificateholders and, with respect to any original document in the Mortgage
File for each Loan Pair or the Universal Hotel Portfolio Whole Loan, for any
present or future Companion Holder or the Universal Hotel Portfolio Companion
Noteholders (and for the benefit of the Trustee as holder of the Uncertificated
Lower-Tier Interests), as applicable. If any Mortgage Loan Seller is unable to
deliver or cause the delivery of any original Mortgage Note, such Mortgage Loan
Seller may deliver a copy of such Mortgage Note, together with a signed lost
note affidavit and appropriate indemnity and shall thereby be deemed to have
satisfied the document delivery requirements of Sections 2.01 and 2.02.
(b) Within 90 days of the Closing Date, the Trustee or a Custodian
on its behalf, shall review the Mortgage Loan documents delivered or caused to
be delivered by the Mortgage Loan Sellers constituting the Mortgage Files; and,
promptly following such review (but in no event later than 90 days after the
Closing Date), the Trustee shall, in the form attached as Exhibit V, certify in
writing to each of the Rating Agencies, the Depositor, the Master Servicer, the
Special Servicer, the Directing Certificateholder and the Mortgage Loan Sellers
that, as to each Mortgage Loan listed in the Mortgage Loan Schedule (other than
any Mortgage Loan paid in full) and except as specifically identified in any
exception report annexed to such writing (the "Trustee Exception Report"), (i)
all documents specified in clauses (i) through (v), (ix) through (xii) and (xvi)
(or, with respect to clause (xvi), a copy of such letter of credit and an
officer's certificate as contemplated by the third to last sentence of Section
2.01(b) hereof), if any, of the definition of "Mortgage File," as applicable,
are in its possession, (ii) the foregoing documents delivered or caused to be
delivered by the Mortgage Loan Sellers have been reviewed by it or by a
Custodian on its behalf and appear regular on their face and appear to be
executed and to relate to such Mortgage Loan, and (iii) based on such
examination and only as to the foregoing documents, the information set forth in
the Mortgage Loan Schedule with respect to the items specified in clauses (iv),
(vi) and (viii)(c) in the definition of "Mortgage Loan Schedule" is correct.
With respect to each Mortgage Loan listed on the Trustee Exception Report, the
Trustee shall specifically identify such Mortgage Loan together with the nature
of such exception (in the form reasonably acceptable to the Trustee and the
related Mortgage Loan Seller and separating items required to be in the Mortgage
File but never delivered from items which were delivered by the related Mortgage
Loan Seller but are out for filing or recording and have not been returned by
the filing office or the recorder's office).
(c) The Trustee, or a Custodian on its behalf, shall review the
Mortgage Loan documents received thereby subsequent to the Closing Date; and, on
or about the first anniversary of the Closing Date, the Trustee shall, in the
form attached as Exhibit V, certify in writing to each of the Depositor, the
Master Servicer, the Special Servicer, the Directing Certificateholder and the
applicable Mortgage Loan Seller that, as to each Mortgage Loan listed on the
Mortgage Loan Schedule (other than any Mortgage Loan as to which a Liquidation
Event has occurred) or any Mortgage Loan specifically identified in any
exception report annexed to such writing (i) all documents specified in clauses
(i) through (v), (ix) through (xii) and (xvi) (or, with respect to clause (xvi),
a copy of such letter of credit and an officer's certificate as contemplated by
the third to last sentence of Section 2.01(b) hereof), if any, of the definition
of "Mortgage File," as applicable, are in its possession, (ii) the foregoing
documents delivered or caused to be delivered by the Mortgage Loan Sellers have
been reviewed by it or by a Custodian on its behalf and appear regular on their
face and appear to be executed and relate to such Mortgage Loan, and (iii) based
on such examination and only as to the foregoing documents, the information set
forth in the Mortgage Loan Schedule with respect to the items specified in
clauses (iv), (vi) and (viii)(c) in the definition of "Mortgage Loan Schedule"
is correct.
(d) Notwithstanding anything contained in this Section 2.02 and
Section 2.03(b) to the contrary, in the case of a deficiency in any of the
documents specified in clauses (ii) through (v), (viii), (xi) and (xii) in the
definition of "Mortgage File," resulting solely from a delay in the return of
the related documents from the applicable filing or recording office, which
deficiency (i) is continuing for (a) in the case of any Mortgage Loan that is
not a Specially Serviced Mortgage Loan, more than eighteen (18) months following
the Closing Date or (b) in the case of any Specially Serviced Mortgage Loan,
thirty (30) days following a Servicing Transfer Event, and (ii) impairs or
prohibits in any material way the Master Servicer's or Special Servicer's
ability to act upon, or enforce, any of the Trust Fund's rights and remedies
under the related Mortgage Loan, or Specially Serviced Mortgage Loan, as
applicable, at the time the Master Servicer or Special Servicer attempts to act
upon, or enforce, any such right or remedy, the Directing Certificateholder, in
its sole judgment, may permit the related Mortgage Loan Seller, in lieu of
repurchasing or substituting for the related Mortgage Loan, to deposit with the
Trustee an amount, to be held in trust in a segregated Eligible Account, equal
to 25% of the Stated Principal Balance of the related Mortgage Loan (in the
alternative, the related Mortgage Loan Seller may deliver to the Trustee a
letter of credit in such amount). Such funds or letter of credit, as applicable,
shall be held by the Trustee (i) until the date on which the Trustee determines
that such document deficiency has been cured or the related Mortgage Loan is no
longer part of the Trust Fund, at which time the Trustee shall return such funds
(or letter of credit) to the related Mortgage Loan Seller, or (ii) if the
related Mortgage Loan is or becomes a Specially Serviced Mortgage Loan, until
the date on which the Special Servicer certifies to the Trustee that it has
determined in the exercise of its reasonable judgment that the document with
respect to which such document deficiency exists is required in connection with
an imminent enforcement of the mortgagee's rights or remedies under the related
Mortgage Loan, defending any claim asserted by any Mortgagor or third party with
respect to the related Mortgage Loan, establishing the validity or priority of
any lien on collateral securing the Mortgage Loan or for any immediate
significant servicing obligation, the related Mortgage Loan Seller shall be
required to repurchase or substitute for the related Mortgage Loan in accordance
with the terms and conditions of Section 2.03(b) or Section 6 of the related
Mortgage Loan Purchase Agreement; provided, however, that such Mortgage Loan
Seller shall not be required to repurchase the Mortgage Loan for a period of
ninety (90) days after receipt of a notice to repurchase (together with any
applicable extension period) if it is attempting to recover the document from
the applicable filing or recording office and provides an officer's certificate
setting forth what actions such Mortgage Loan Seller is pursuing in connection
with such recovery. In the event of a repurchase or substitution, upon such
date, the Trustee shall deposit, or cause the Master Servicer to deposit, such
funds, or shall draw upon the letter of credit and deposit the proceeds of such
draw, into the Certificate Account to be applied to the Purchase Price (or the
Substitution Shortfall Amount, if applicable, in which event, the amount of such
funds or proceeds which exceed the Substitution Shortfall Amount shall be
returned to the Mortgage Loan Seller) in accordance with Section 2.03(b). All
such funds deposited with the Trustee shall be invested in Permitted
Investments, at the direction and for the benefit of the related Mortgage Loan
Seller. Such funds shall be treated as an "outside reserve fund" under the REMIC
Provisions, which, together with any reimbursement from the Lower-Tier REMIC, is
beneficially owned by the related Mortgage Loan Seller for federal income tax
purposes, which Mortgage Loan Seller shall remain liable for any taxes payable
on income or gain with respect thereto.
(e) It is herein acknowledged that neither the Trustee nor any
Custodian is under any duty or obligation (i) to determine whether any of the
documents specified in clauses (vi), (vii), (viii), (x) and (xii) through (xxii)
of the definition of "Mortgage File" exist or are required to be delivered by
the Depositor, the Mortgage Loan Sellers or any other Person (unless identified
on the Mortgage Loan Checklist) or (ii) to inspect, review or examine any of the
documents, instruments, certificates or other papers relating to the Mortgage
Loans delivered to it to determine that the same are genuine, enforceable,
sufficient to perfect and maintain the perfection of a security interest or
appropriate for the represented purpose or that they are other than what they
purport to be on their face and, with respect to the documents specified in
clause (ix), whether the insurance is effective as of the date of the
recordation, whether all endorsements or riders issued are included in the file
or if the policy has not been issued whether any acceptable replacement document
has been dated the date of the related Mortgage Loan funding. Further, with
respect to the UCC financing statements referenced in the Mortgage File, absent
actual knowledge to the contrary or copies of UCC financing statements delivered
to the Trustee as part of the Mortgage File indicating otherwise, the Trustee
may assume, for the purposes of the filings and the certification to be
delivered in accordance with this Section 2.02 that the related Mortgage File
should include one state level UCC financing statement filing for each Mortgaged
Property (or with respect to any Mortgage Loan that has two or more Mortgagors,
for each Mortgagor, except to the extent multiple Mortgagors are named as
debtors in the same UCC financing statement filing), or if the Trustee has
received notice that a particular UCC financing statement was filed as a fixture
filing, that the related Mortgage File should include only a local UCC financing
statement filing for each Mortgaged Property (or with respect to any Mortgage
Loan that has two or more Mortgagors, for each Mortgagor, except to the extent
multiple Mortgagors are named as debtors in the same UCC financing statement
filing). The assignments of the UCC financing statements to be assigned to the
Trust will be delivered on the new national forms (or on such other form as may
be acceptable for filing in the applicable jurisdiction) and in recordable
format and will be filed in the jurisdiction(s) where such UCC financing
statements were originally filed, as indicated in the documents provided, and in
accordance with then current laws.
(f) If, in the process of reviewing the Mortgage Files or at any
time thereafter, the Trustee or any Custodian finds any document or documents
constituting a part of a Mortgage File (1) not to have been properly executed or
(2) subject to Section 2.01(b) and (c), not to have been delivered, (3) to
contain information that does not conform in any material respect with the
corresponding information set forth in the Mortgage Loan Schedule or (4) to be
defective on its face (each, a "Defect" in the related Mortgage File), the
Trustee shall promptly so notify the Depositor, the Master Servicer, the Special
Servicer, the Directing Certificateholder and the applicable Mortgage Loan
Seller (and in no event later than 90 days after the Closing Date and every
calendar quarter thereafter, commencing with the quarter ending December 31,
2005) until September 30, 2007, by providing a Trustee Exception Report setting
forth for each affected Mortgage Loan, with particularity, the nature of such
Defect (in a form reasonably acceptable to the Trustee and such Mortgage Loan
Seller and separating items required to be in the Mortgage File but never
delivered from items which were delivered by such Mortgage Loan Seller but are
out for recording or filing and have not been returned by the recorder's office
or filing office).
Section 2.03 Representations, Warranties and Covenants of the
Depositor; Mortgage Loan Sellers' Repurchase or Substitution of Mortgage Loans
for Defects in Mortgage Files and Breaches of Representations and Warranties.
(a) The Depositor hereby represents and warrants that:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, and the
Depositor has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement by it, and has the
power and authority to execute, deliver and perform this Agreement and all
the transactions contemplated hereby, including, but not limited to, the
power and authority to sell, assign and transfer the Mortgage Loans in
accordance with this Agreement;
(ii) Assuming the due authorization, execution and delivery of this
Agreement by each other party hereto, this Agreement and all of the
obligations of the Depositor hereunder are the legal, valid and binding
obligations of the Depositor, enforceable against the Depositor in
accordance with the terms of this Agreement, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights generally, and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iii) The execution and delivery of this Agreement and the
performance of its obligations hereunder by the Depositor will not
conflict with any provisions of any law or regulations to which the
Depositor is subject, or conflict with, result in a breach of or
constitute a default under any of the terms, conditions or provisions of
the certificate of incorporation or the by-laws of the Depositor or any
indenture, agreement or instrument to which the Depositor is a party or by
which it is bound, or any order or decree applicable to the Depositor, or
result in the creation or imposition of any lien on any of the Depositor's
assets or property, which would materially and adversely affect the
ability of the Depositor to carry out the transactions contemplated by
this Agreement; the Depositor has obtained any consent, approval,
authorization or order of any court or governmental agency or body
required for the execution, delivery and performance by the Depositor of
this Agreement;
(iv) There is no action, suit or proceeding pending or, to the
Depositor's knowledge, threatened against the Depositor in any court or by
or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of the Mortgage Loans or the
ability of the Depositor to carry out the transactions contemplated by
this Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans with the
full right to transfer the Mortgage Loans to the Trust and the Mortgage
Loans have been validly transferred to the Trust.
(b) If any Certificateholder, the Master Servicer, the Special
Servicer, the Paying Agent or the Trustee discovers (without implying any duty
of such person to make, or to attempt to make, such a discovery) or receives
notice of a Defect in any Mortgage File or a breach of any representation or
warranty with respect to a Mortgage Loan set forth in, or required to be made
with respect to a Mortgage Loan by the applicable Mortgage Loan Seller pursuant
to, the related Mortgage Loan Purchase Agreement (a "Breach"), which Defect or
Breach, as the case may be, materially and adversely affects the value of such
Mortgage Loan, the value of the related Mortgaged Property or the interests of
the Trustee or any Certificateholder therein, such Certificateholder, the Master
Servicer, the Special Servicer, the Trustee, the Paying Agent or the Directing
Certificateholder, as applicable, shall give prompt written notice of such
Defect or Breach, as the case may be, to the Depositor, the Master Servicer, the
Special Servicer, the applicable Mortgage Loan Seller, the Trustee, the Paying
Agent and the Directing Certificateholder and shall request in writing that the
applicable Mortgage Loan Seller, not later than 90 days after the earlier of (i)
the applicable Mortgage Loan Seller's receipt of such notice or (ii) in the case
of a Defect or Breach relating to a Mortgage Loan not being a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code, but without
regard to the rule of Treasury Regulations Section 1.860G-2(f)(2) that causes a
defective mortgage loan to be treated as a qualified mortgage, the applicable
Mortgage Loan Seller's discovery of such Defect or Breach (the "Initial Cure
Period") that materially and adversely affects the value of any Mortgage Loan,
the value of the related Mortgaged Property or the interests of the Trustee or
any Certificateholder therein, (i) cure such Defect or Breach, as the case may
be, in all material respects, (ii) repurchase the affected Mortgage Loan or REO
Loan at the applicable Purchase Price and in conformity with the applicable
Mortgage Loan Purchase Agreement and this Agreement or (iii) substitute a
Qualified Substitute Mortgage Loan for such affected Mortgage Loan or REO Loan
(provided, that in no event shall any such substitution occur later than the
second anniversary of the Closing Date) and pay the Master Servicer for deposit
into the Certificate Account, any Substitution Shortfall Amount in connection
therewith and in conformity with the applicable Mortgage Loan Purchase Agreement
and this Agreement; provided, however, that if such Breach or Defect is capable
of being cured but is not cured within the Initial Cure Period, and the
applicable Mortgage Loan Seller has commenced and is diligently proceeding with
the cure of such Breach or Defect within the Initial Cure Period, the applicable
Mortgage Loan Seller shall have an additional 90 days commencing immediately
upon the expiration of the Initial Cure Period (such additional 90 day period,
the "Extended Cure Period") to complete such cure (or, failing such cure, to
repurchase the related Mortgage Loan or REO Loan or substitute a Qualified
Substitute Mortgage Loan) and provided further, that with respect to such
Extended Cure Period the applicable Mortgage Loan Seller shall have delivered an
officer's certificate to the Trustee (who shall promptly deliver a copy of such
officer's certificate to the Rating Agencies, the Master Servicer, the Special
Servicer and the Directing Certificateholder), setting forth the reason such
Breach or Defect is not capable of being cured within the Initial Cure Period
and what actions the applicable Mortgage Loan Seller is pursuing in connection
with the cure thereof and stating that the applicable Mortgage Loan Seller
anticipates that such Breach or Defect will be cured within the Extended Cure
Period. Notwithstanding the foregoing, any Defect or Breach which causes any
Mortgage Loan not to be a "qualified mortgage" (within the meaning of Section
860G(a)(3) of the Code, but without regard to the rule of Treasury Regulations
Section 1.860G-2(f)(2) that causes a defective mortgage loan to be treated as a
qualified mortgage) shall be deemed to materially and adversely affect the
interests of Certificateholders therein, and such Mortgage Loan shall be
repurchased or substituted for without regard to the extended cure period
described in the preceding sentence. If the affected Mortgage Loan is to be
repurchased, the funds in the amount of the Purchase Price remitted by the
applicable Mortgage Loan Seller are to be deposited by wire transfer in the
Certificate Account. If any Breach pertains to a representation or warranty that
the related Mortgage Loan documents or any particular Mortgage Loan document
requires the related Mortgagor to bear the costs and expenses associated with
any particular action or matter under such Mortgage Loan document(s), then the
related Mortgage Loan Seller shall cure such Breach within the applicable cure
period (as the same may be extended) by reimbursing the Trust Fund (by wire
transfer of immediately available funds) the reasonable amount of any such costs
and expenses incurred by the Master Servicer, the Special Servicer, the Paying
Agent, the Trustee or the Trust Fund that are the basis of such Breach and have
not been reimbursed by the related Mortgagor; provided, however, that in the
event any such costs and expenses exceed $10,000, the related Mortgage Loan
Seller shall have the option to either repurchase or substitute for the related
Mortgage Loan as provided above or pay such costs and expenses. Except as
provided in the proviso to the immediately preceding sentence, the related
Mortgage Loan Seller shall remit the amount of such costs and expenses and upon
its making such remittance, the related Mortgage Loan Seller shall be deemed to
have cured such Breach in all respects. To the extent any fees or expenses that
are the subject of a cure by the related Mortgage Loan Seller are subsequently
obtained from the related Mortgagor, the portion of the cure payment made by the
related Mortgage Loan Seller equal to such fees or expenses obtained from the
Mortgagor shall be returned to the related Mortgage Loan Seller pursuant to
Section 2.03(f) below. Monthly Payments due with respect to each Qualified
Substitute Mortgage Loan (if any) after the related Due Date in the month of
substitution, and Monthly Payments due with respect to each Mortgage Loan being
repurchased or replaced after the related Cut-off Date and received by the
Master Servicer or the Special Servicer on behalf of the Trust on or prior to
the related date of repurchase or substitution, shall be part of the Trust Fund.
Monthly Payments due with respect to each Qualified Substitute Mortgage Loan (if
any) on or prior to the related Due Date in the month of substitution, and
Monthly Payments due with respect to each Mortgage Loan being repurchased or
replaced and received by the Master Servicer or the Special Servicer on behalf
of the Trust after the related date of repurchase or substitution, shall not be
part of the Trust Fund and are to be remitted by the Master Servicer to the
Mortgage Loan Seller effecting the related repurchase or substitution promptly
following receipt. Notwithstanding anything to the contrary contained in this
Agreement or the related Mortgage Loan Purchase Agreement, no delay in either
the discovery of a Defect or Breach or delay on the part of any party to this
Agreement in providing notice of such Defect or Breach shall relieve the
Mortgage Loan Seller of its obligation to repurchase if it is otherwise required
to do so under the related Mortgage Loan Purchase Agreement and/or this
Agreement.
Any of the following will cause a document in the Mortgage File to
be deemed to have a Defect and to be conclusively presumed to materially and
adversely affect the interests of Certificateholders in a Mortgage Loan and to
be deemed to materially and adversely affect the interest of the
Certificateholders in and the value of a Mortgage Loan: (a) the absence from the
Mortgage File of the original signed Mortgage Note, unless the Mortgage File
contains a signed lost note affidavit and indemnity that appears to be regular
on its face; (b) the absence from the Mortgage File of the original signed
Mortgage that appears to be regular on its face, unless there is included in the
Mortgage File a certified copy of the Mortgage and a certificate stating that
the original signed Mortgage was sent for recordation; (c) the absence from the
Mortgage File of the item called for by paragraph (ix) of the definition of
Mortgage File; (d) the absence from the Mortgage File of any intervening
assignments required to create a complete chain of assignment to the Trustee on
behalf of the Trust, unless there is included in the Mortgage File a certified
copy of each such missing intervening assignment and a certificate stating that
the original intervening assignment was sent for recordation; (e) the absence
from the Mortgage File of any required letter of credit; or (f) with respect to
any leasehold mortgage loan, the absence from the related Mortgage File of a
copy (or an original, if available) of the related Ground Lease; provided,
however, that no Defect (except the Defects previously described in clauses (a)
through (f)) shall be considered to materially and adversely affect the value of
the related Mortgage Loan, the value of the related Mortgaged Property or the
interests of the Trustee or Certificateholders unless the document with respect
to which the Defect exists is required in connection with an imminent
enforcement of the mortgagee's rights or remedies under the related Mortgage
Loan, defending any claim asserted by any Mortgagor or third party with respect
to the Mortgage Loan, establishing the validity or priority of any lien on any
collateral securing the Mortgage Loan or for any immediate significant servicing
obligation. Notwithstanding the foregoing, the delivery of executed escrow
instructions or other commitment to issue a lender's title insurance policy, as
provided in clause (ix) of the definition of Mortgage File herein, in lieu of
the delivery of the actual policy of lender's title insurance, shall not be
considered a Defect or Breach with respect to any Mortgage File if such actual
policy is delivered to the Trustee or a Custodian on its behalf not later than
18 months following the Closing Date.
(c) In connection with any repurchase of, or substitution of a
Qualified Substitute Mortgage Loan for, a Mortgage Loan contemplated by this
Section 2.03, the Trustee, the Master Servicer and the Special Servicer shall
each tender to the applicable Mortgage Loan Seller, upon delivery to each of the
Trustee, the Master Servicer and the Special Servicer of a trust receipt
executed by the applicable Mortgage Loan Seller evidencing such repurchase or
substitution, all portions of the Mortgage File and other documents pertaining
to such Mortgage Loan possessed by each of the Trustee, the Master Servicer and
the Special Servicer, and each document that constitutes a part of the Mortgage
File that was endorsed or assigned to the Trustee shall be endorsed or assigned,
as the case may be, to the applicable Mortgage Loan Seller, in the same manner
as provided in Section 6 of the related Mortgage Loan Purchase Agreement, so as
to vest in such Mortgage Loan Seller, the legal and beneficial ownership of such
repurchased or substituted for Mortgage Loan (including property acquired in
respect thereof or proceeds of any insurance policy with respect thereto) and
the related Mortgage Loan documents.
(d) Section 6(e) of each of the Mortgage Loan Purchase Agreements
provides the sole remedy available to the Certificateholders (subject to the
limitations on the rights of the Certificateholders under this Agreement), or
the Trustee on behalf of the Certificateholders, with respect to any Defect in a
Mortgage File or any Breach of any representation or warranty with respect to a
Mortgage Loan set forth in or required to be made pursuant to Section 6 of any
of the Mortgage Loan Purchase Agreements.
(e) The Master Servicer or Special Servicer (in the case of
Specially Serviced Mortgage Loans) shall, for the benefit of the
Certificateholders and the Trustee (as holder of the Uncertificated Lower-Tier
Interests), enforce the obligations of the applicable Mortgage Loan Seller under
the applicable Mortgage Loan Purchase Agreement. Such enforcement, including,
without limitation, the legal prosecution of claims, if any shall be carried out
in such form, to such extent and at such time as the Master Servicer or the
Special Servicer, as the case may be, would require were it, in its individual
capacity, the owner of the affected Mortgage Loan(s). Any costs incurred by the
Master Servicer and the Special Servicer with respect to the enforcement of the
obligations of the applicable Mortgage Loan Seller, under the applicable
Mortgage Loan Purchase Agreement shall be deemed to be Servicing Advances to the
extent not otherwise provided herein. The Master Servicer and the Special
Servicer, as the case may be, shall be reimbursed for the reasonable costs of
such enforcement: first, from a specific recovery, if any, of costs, expenses or
attorneys' fees against the applicable Mortgage Loan Seller; second, pursuant to
Section 3.05(a)(vii) herein out of the related Purchase Price, to the extent
that such expenses are a specific component thereof; and third, if at the
conclusion of such enforcement action it is determined that the amounts
described in clauses first and second are insufficient, then pursuant to Section
3.05(a)(viii) herein out of general collections on the Mortgage Loans on deposit
in the Certificate Account.
(f) If a Mortgage Loan Seller incurs any expense in connection with
the curing of a Breach, which also constitutes a default under the related
Mortgage Loan and is reimbursable thereunder, such Mortgage Loan Seller shall
have a right, and shall be subrogated to the rights of the Trustee and the Trust
Fund under the Mortgage Loan, to recover the amount of such expenses from the
related Mortgagor; provided, however, that such Mortgage Loan Seller's rights
pursuant to this Section 2.03(f) shall be junior, subject and subordinate to the
rights of the Trustee, the Paying Agent, the Trust Fund, the Master Servicer and
the Special Servicer to recover amounts owed by the related Mortgagor under the
terms of such Mortgage Loan, including, without limitation, the rights to
recover unreimbursed Advances, accrued and unpaid interest on Advances at the
Reimbursement Rate and unpaid or unreimbursed expenses of the Trustee, the
Paying Agent, the Trust Fund, the Master Servicer or the Special Servicer
allocable to such Mortgage Loan. The Master Servicer or, with respect to a
Specially Serviced Mortgage Loan, the Special Servicer, shall use reasonable
efforts to recover such expenses for such Mortgage Loan Seller to the extent
consistent with the Servicing Standards, but taking into account the subordinate
nature of the reimbursement to the Mortgage Loan Seller; provided, however, that
the Master Servicer or, with respect to a Specially Serviced Mortgage Loan, the
Special Servicer, determines in the exercise of its sole discretion consistent
with the Servicing Standards that such actions by it will not impair the Master
Servicer's and/or the Special Servicer's collection or recovery of principal,
interest and other sums due with respect to the related Mortgage Loan which
would otherwise be payable to the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificateholders pursuant to the terms of
this Agreement; provided further, that the Master Servicer or, with respect to a
Specially Serviced Mortgage Loan, the Special Servicer may waive the collection
of amounts due on behalf of the Mortgage Loan Seller in its sole discretion in
accordance with the Servicing Standards.
(g) If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described in this Section, (ii) such Mortgage Loan
is a Crossed Loan, and (iii) the applicable Defect or Breach does not constitute
a Defect or Breach, as the case may be, as to any other Crossed Loan in such
Crossed Group (without regard to this paragraph), then the applicable Defect or
Breach, as the case may be, will be deemed to constitute a Defect or Breach, as
the case may be, as to any other Crossed Loan in the Crossed Group for purposes
of this paragraph, and the related Mortgage Loan Seller will be required to
repurchase or substitute for such other Crossed Loan(s) in the related Crossed
Group as provided in Section 2.03(b) unless such other Crossed Loans satisfy the
Crossed Loan Repurchase Criteria and the Mortgage Loan affected by the
applicable Breach or Defect and Qualified Substitute Mortgage Loan, if any,
satisfy all other criteria for substitution and repurchase of Mortgage Loans set
forth herein. In the event that the remaining Crossed Loans in such Crossed
Group satisfy the aforementioned criteria, the applicable Mortgage Loan Seller
may elect either to repurchase or substitute for only the affected Crossed Loan
as to which the related Breach or Defect exists or to repurchase or substitute
for all of the Crossed Loans in the related Crossed Group. Any reserve or other
cash collateral or letters of credit securing the Crossed Loans shall be
allocated between such Mortgage Loans in accordance with the related Mortgage
Loan documents or otherwise on a pro rata basis based upon their outstanding
Stated Principal Balances. Except as provided in Section 2.03(h), all other
terms of the Mortgage Loans shall remain in full force and effect without any
modification thereof.
(h) With respect to any Crossed Loan, to the extent that the
applicable Mortgage Loan Seller is required to repurchase or substitute for such
Mortgage Loan in the manner prescribed in Section 2.03(g) while the Trustee
continues to hold any other Crossed Loans in the related Crossed Group, the
applicable Mortgage Loan Seller and the Trustee, as assignee of the Depositor,
will, as set forth in the related Mortgage Loan Purchase Agreement, forbear from
enforcing any remedies against the other's Primary Collateral but each will be
permitted to exercise remedies against the Primary Collateral securing its
respective Mortgage Loans, including with respect to the Trustee, the Primary
Collateral securing Mortgage Loans still held by the Trustee, so long as such
exercise does not materially impair the ability of the other party to exercise
its remedies against its Primary Collateral. If the exercise of the remedies by
one party would materially impair the ability of the other party to exercise its
remedies with respect to the Primary Collateral securing the Crossed Loans held
by such party, then both parties have agreed in the related Mortgage Loan
Purchase Agreement to forbear from exercising such remedies until the Mortgage
Loan documents evidencing and securing the relevant Mortgage Loans can be
modified in a manner that complies with the Mortgage Loan Purchase Agreement to
remove the threat of material impairment as a result of the exercise of
remedies.
Section 2.04 Execution of Certificates; Issuance of Uncertificated
Lower-Tier Interests. The Trustee hereby acknowledges the assignment to it of
the Mortgage Loans and, subject to Sections 2.01 and 2.02, the delivery to it,
or a Custodian on its behalf, of the Mortgage Files and a fully executed
original counterpart of each of the Mortgage Loan Purchase Agreements, together
with the assignment to it of all of the other assets included in the Lower-Tier
REMIC. Concurrently with such assignment and delivery, and in exchange for the
Mortgage Loans (other than Excess Interest), receipt of which is hereby
acknowledged, the Trustee (i) acknowledges the issuance of the Uncertificated
Lower-Tier Interests by the Paying Agent to the Depositor and (ii) acknowledges
the authentication and delivery of the Class LR Certificates by the Paying Agent
to or upon the order of the Depositor, and (iii) immediately thereafter, the
Trustee acknowledges that it has caused the Certificate Registrar to execute and
caused the Authenticating Agent to authenticate and to deliver to or upon the
order of the Depositor, in exchange for the Uncertificated Lower-Tier Interests,
the Regular Certificates and the Class R Certificates, and the Depositor hereby
acknowledges the receipt by it or its designees, of such Certificates in
authorized Denominations evidencing the entire beneficial ownership of the
Upper-Tier REMIC.
In exchange for the Excess Interest, the Trustee acknowledges that
it has caused the Certificate Registrar to execute and has caused the
Authenticating Agent to authenticate and to deliver to or upon the order of the
Depositor the Class S Certificates in authorized Denominations.
Section 2.05 Grantor Trust Designations. The Class S Certificates
are hereby designated as undivided beneficial interests in the portion of the
Trust Fund consisting of Excess Interest, the Excess Interest Distribution
Account and proceeds thereof, which portion shall be treated as a grantor trust
within the meaning of subpart E, Part I of subchapter J of the Code.
[End of Article II]
ARTICLE III
ADMINISTRATION AND
SERVICING OF THE TRUST FUND
Section 3.01 Master Servicer to Act as Master Servicer; Special
Servicer to Act as Special Servicer; Administration of the Mortgage Loans. (a)
The Master Servicer shall service and administer the Mortgage Loans and
Companion Loans that it is obligated to service and administer pursuant to this
Agreement on behalf of the Trustee and in the best interests of and for the
benefit of the Certificateholders and, in the case of the Companion Loans, the
related Companion Holders, as a collective whole, taking into account the
subordinate nature of the Companion Loans (as determined by the Master Servicer
in its good faith and reasonable judgment), in accordance with applicable law,
the terms of this Agreement and the terms of the respective Mortgage Loans and
with respect to each Loan Pair, the Companion Loan and the related Intercreditor
Agreement and, to the extent consistent with the foregoing, further as follows:
(i) with the same skill, care and diligence as is normal and usual in its
general mortgage servicing activities on behalf of third parties or on behalf of
itself, whichever is higher, with respect to mortgage loans that are comparable
to the Mortgage Loans and Companion Loans; (ii) with a view to the timely
collection of all scheduled payments of principal and interest under the
Mortgage Loans, or if a Mortgage Loan comes into and continues in default and if
in the good faith reasonable judgment of the Special Servicer, no satisfactory
arrangements can be made for the collection of the delinquent payments, the
maximization of the recovery on such Mortgage Loan to the 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 net Mortgage Rate); and (iii) without regard to (A) any
relationship that the Master Servicer or any Affiliate thereof may have with the
related Mortgagor, (B) the ownership of any Certificate by the Master Servicer
or by any Affiliate thereof, (C) the Master Servicer's obligation to make
Advances, and (D) the right of the Master Servicer (or any Affiliate thereof) to
receive reimbursement or costs, or the sufficiency of any compensation payable
to it, hereunder or with respect to any particular transaction (the conditions
set forth in the immediately foregoing clauses (i), (ii) and (iii), (the "Master
Servicer Servicing Standards"). With respect to each Loan Pair, in the event of
a conflict between this Agreement and the related Intercreditor Agreement, the
related Intercreditor Agreement shall control; provided, in no event shall the
Master Servicer or the Special Servicer take any action in accordance with the
terms of any Intercreditor Agreement that would cause the Master Servicer or the
Special Servicer, as the case may be, to violate the Servicing Standards.
The Special Servicer will be required to service and administer the
Mortgage Loans and Companion Loans for which it is responsible in accordance
with applicable law, the terms of this Agreement and the Mortgage Loan documents
(and the terms of any related intercreditor agreement, which will govern in the
event of any disagreement between such intercreditor agreement and this
Agreement) and, to the extent consistent with the foregoing, in accordance with
the higher of the following standards of care: (1) the same manner in which, and
with the same care, skill, prudence and diligence with which the Special
Servicer services and administers similar mortgage loans for other third-party
portfolios, and (2) the same care, skill, prudence and diligence with which the
Special Servicer services and administers commercial, multifamily and
manufactured housing community mortgage loans owned by the Special Servicer, in
either case, with a view to the maximization of recovery of principal and
interest on a net present value basis on Specially Serviced Mortgage Loans and
the best interests of the trust and the Certificateholders (and in the case of
the Lowe's Aliso Viejo AB Mortgage Loan and the 0000 Xxxxxxxx Xxxxxxxxx XX
Mortgage Loan, the holder of the related Subordinate Companion Loan, taking into
account the subordinate nature of such Subordinate Companion Loan, subject to
any rights contained in the related Intercreditor Agreement) as a collective
whole, as determined by the Special Servicer, in its reasonable judgment, in
either case giving due consideration to the customary and usual standards of
practice of prudent institutional, multifamily and commercial loan servicers but
without regard to (A) any relationship that the Special Servicer, or any of its
Affiliates, may have with the related Mortgagor or any Mortgagor Affiliate, any
Mortgage Loan Seller or any other party to this Agreement; (B) the ownership of
any Certificate or, if applicable, the Lowe's Aliso Viejo Subordinate Companion
Loan or the 0000 Xxxxxxxx Xxxxxxxxx Xxxxxxxxxxx Companion Loan, by the Special
Servicer or any of its affiliates; (C) the Special Servicer's right to receive
compensation (or the adequacy thereof) for its services under the Pooling and
Servicing Agreement or with respect to any particular transaction; (E) the
ownership, servicing or management for others of any other mortgage loans or
mortgaged properties by the Special Servicer; (F) any option to purchase any
Mortgage Loan or Companion Loan it may have; and (G) any debt that the Special
Servicer, or any of its affiliates, has extended to any borrower or any of its
affiliates (the foregoing, collectively referred to as the "Special Servicer
Servicing Standards"). "Servicing Standards" means (i) with respect to the
Master Servicer, the Master Servicer Servicing Standards and (ii) with respect
to the Special Servicer, the Special Servicer Servicing Standards.
Without limiting the foregoing, subject to Section 3.21, the Special
Servicer shall be obligated to service and administer (i) any Mortgage Loans and
Companion Loans as to which a Servicing Transfer Event has occurred and is
continuing (the "Specially Serviced Mortgage Loans") and (ii) any REO
Properties; provided, that the Master Servicer shall continue to receive
payments and make all calculations, and prepare, or cause to be prepared, all
reports, required hereunder with respect to the Specially Serviced Mortgage
Loans, except for the reports specified herein as prepared by the Special
Servicer, as if no Servicing Transfer Event had occurred and with respect to the
REO Properties (and the related REO Loans) as if no REO Acquisition had
occurred, and to render such services with respect to such Specially Serviced
Mortgage Loans and REO Properties as are specifically provided for herein;
provided further, however, that the Master Servicer shall not be liable for
failure to comply with such duties insofar as such failure results from a
failure of the Special Servicer to provide sufficient information to the Master
Servicer to comply with such duties or failure by the Special Servicer to
otherwise comply with its obligations hereunder. Each Mortgage Loan or Companion
Loan that becomes a Specially Serviced Mortgage Loan shall continue as such
until satisfaction of the conditions specified in Section 3.21(a). Without
limiting the foregoing, subject to Section 3.21, the Master Servicer shall be
obligated to service and administer all Mortgage Loans and Companion Loans,
which are not Specially Serviced Mortgage Loans (other than the Universal Hotel
Portfolio Mortgage Loan). The Special Servicer shall make the inspections, use
its reasonable efforts to collect the statements and forward to the Master
Servicer the reports in respect of the related Mortgaged Properties with respect
to Specially Serviced Mortgage Loans in accordance with Section 3.12. After
notification to the Master Servicer, the Special Servicer may contact the
Mortgagor of any Non-Specially Serviced Mortgage Loan if efforts by the Master
Servicer to collect required financial information have been unsuccessful or any
other issues remain unresolved. Such contact shall be coordinated through and
with the cooperation of the Master Servicer. No provision herein contained shall
be construed as an express or implied guarantee by the Master Servicer or the
Special Servicer of the collectability or recoverability of payments on the
Mortgage Loans or shall be construed to impair or adversely affect any rights or
benefits provided by this Agreement to the Master Servicer or the Special
Servicer (including with respect to Servicing Fees, Special Servicing Fees or
the right to be reimbursed for Advances and interest accrued thereon). Any
provision in this Agreement for any Advance by the Master Servicer or the
Trustee is intended solely to provide liquidity for the benefit of the
Certificateholders and not as credit support or otherwise to impose on any such
Person the risk of loss with respect to one or more of the Mortgage Loans. No
provision hereof shall be construed to impose liability on the Master Servicer
or the Special Servicer for the reason that any recovery to the
Certificateholders in respect of a Mortgage Loan at any time after a
determination of present value recovery is less than the amount reflected in
such determination.
(b) Subject only to the Servicing Standards and the terms of this
Agreement and of the respective Mortgage Loans and, if applicable, the Companion
Loans, and any applicable Intercreditor Agreements (and intercreditor agreements
entered into after the Closing Date with respect to any Mortgage Loan in
connection with mezzanine debt permitted under the related Mortgage Loan
documents), and applicable law, the Master Servicer and the Special Servicer
each shall have full power and authority, acting alone or, in the case of the
Master Servicer, subject to Section 3.22, through one or more Sub-Servicers, to
do or cause to be done any and all things in connection with such servicing and
administration for which it is responsible which it may deem necessary or
desirable. Without limiting the generality of the foregoing, each of the Master
Servicer and the Special Servicer, in its own name (or in the name of the
Trustee and, if applicable, the Companion Holder), is hereby authorized and
empowered by the Trustee to execute and deliver, on behalf of the
Certificateholders and the Trustee or any of them, with respect to each Mortgage
Loan (and, with respect to a Companion Loan, the Companion Holder) it is
obligated to service under this Agreement: (i) any and all financing statements,
continuation statements and other documents or instruments necessary to maintain
the lien created by the related Mortgage or other security document in the
related Mortgage File on the related Mortgaged Property and related collateral;
(ii) subject to Sections 3.08 and 3.20, any and all modifications, waivers,
amendments or consents to, under or with respect to any documents contained in
the related Mortgage File; and (iii) any and all instruments of satisfaction or
cancellation, pledge agreements and other documents in connection with a
defeasance, or of partial or full release or discharge, and all other comparable
instruments. Subject to Section 3.10, the Trustee shall furnish, or cause to be
furnished, to the Master Servicer or the Special Servicer any powers of attorney
and other documents necessary or appropriate to enable the Master Servicer or
the Special Servicer, as the case may be, to carry out its servicing and
administrative duties hereunder; provided, however, that the Trustee shall not
be held liable for any negligence with respect to, or misuse of, any such power
of attorney by the Master Servicer or the Special Servicer. Notwithstanding
anything contained herein to the contrary, the Master Servicer or the Special
Servicer, as the case may be, shall not, 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 the Special Servicer's, as the case
may be, representative capacity or (ii) take any action with the intent to
cause, and that actually causes, the Trustee to be required to be registered to
do business in any state.
(c) To the extent the Master Servicer is permitted pursuant to the
terms of the related Mortgage Loan documents or Companion Loan documents
(including the related Intercreditor Agreement) to exercise its discretion with
respect to any action that requires a confirmation of the Rating Agencies that
such action will not result in the downgrade, withdrawal or qualification of the
ratings of any Class of Certificates, the Master Servicer shall require the
costs of such written confirmation to be borne by the related Mortgagor. To the
extent the terms of the related Mortgage Loan documents or Companion Loan
documents require the Mortgagor to bear the costs of any confirmation of the
Rating Agencies that an action will not result in the downgrade, withdrawal or
qualification of the ratings of any Class of Certificates, the Master Servicer
shall not waive the requirement that such costs and expenses be borne by the
related Mortgagor. To the extent that the terms of the related Mortgage Loan
documents or Companion Loan documents are silent as to who bears the costs of
any confirmation of the Rating Agencies that an action will not result in the
downgrade, withdrawal or qualification of the ratings of any Class of
Certificates, the Master Servicer shall use reasonable efforts to have the
Mortgagor bear such costs and expenses. The Master Servicer shall not be
responsible for the payment of such costs and expenses out of pocket.
(d) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee under this Agreement is intended by the parties to be
that of an independent contractor and not that of a joint venturer, partner or
agent.
(e) The Master Servicer shall, to the extent permitted by the
related Mortgage Loan documents and Companion Loan documents and consistent with
the Servicing Standards, permit Escrow Payments to be invested only in Permitted
Investments.
(f) Within 60 days (or such shorter time period as is required by
the terms of the applicable Mortgage Loan documents) after the later of (i) the
receipt thereof and (ii) the Closing Date, the Master Servicer shall notify, or
cause the applicable Mortgage Loan Seller to notify, each provider of a letter
of credit for each Mortgage Loan identified as having a letter of credit on the
Mortgage Loan Schedule, that the Trust (in care of the Master Servicer) for the
benefit of the Certificateholders and any related Companion Holders shall be the
beneficiary under each such letter of credit and notify each lessor under a
Ground Lease for each Mortgage Loan identified as subject to a leasehold
interest on the Mortgage Loan Schedule, that the Master Servicer or the Special
Servicer shall service such Mortgage Loan for the benefit of the
Certificateholders. If the Mortgage Loan documents do not require the related
Mortgagor to pay any costs and expenses relating to any modifications to the
related letter of credit, then the applicable Mortgage Loan Seller shall pay
such costs and expenses. If the Mortgage Loan documents require the related
Mortgagor to pay any costs and expenses relating to any modifications to the
related letter of credit, and such Mortgagor fails to pay such costs and
expenses after the Master Servicer has exercised reasonable efforts to collect
such costs and expenses from such Mortgagor, then the Master Servicer shall give
the applicable Mortgage Loan Seller notice of such failure and the amount of
costs and expenses, and such Mortgage Loan Seller shall pay such costs and
expenses. The costs and expenses of any modifications to Ground Leases shall be
paid by the related Mortgagor. Neither the Master Servicer nor the Special
Servicer shall have any liability for the failure of any Mortgage Loan Seller to
perform its obligations under the related Mortgage Loan Purchase Agreement.
(g) Notwithstanding anything herein to the contrary, in no event
shall the Master Servicer (or the Trustee, as applicable) make a Servicing
Advance with respect to any Companion Loan to the extent the related AB Mortgage
Loan has been paid in full or is no longer included in the Trust Fund.
(h) Servicing and administration of each Companion Loan shall
continue hereunder for so long as the corresponding AB Mortgage Loan or any
related REO Property is part of the Trust Fund or for such longer period as any
amounts payable by the related Companion Holder to or for the benefit of the
Trust or any party hereto in accordance with the related Intercreditor Agreement
remain due and owing.
(i) [RESERVED]
(j) The Special Servicer agrees that upon the occurrence of a
Servicing Transfer Event with respect to any Mortgage Loan, it shall, subject to
Section 3.21, enforce, on behalf of the Trust, subject to the Servicing
Standards and to the extent the Special Servicer determines such action is in
the best interests of the Trust Fund, all rights conveyed to the Trustee
pursuant to the related Intercreditor Agreement. The costs and expenses incurred
by the Special Servicer in connection with such enforcement shall be paid as a
Servicing Advance.
(k) Notwithstanding anything herein to the contrary, the parties
hereto acknowledge and agree that the Master Servicer's obligations and
responsibilities hereunder and the Master Servicer's authority with respect to
the Universal Hotel Portfolio Mortgage Loan are limited by and subject to the
terms of the Universal Hotel Portfolio Intercreditor Agreement and the rights of
the Universal Hotel Portfolio Master Servicer and the Universal Hotel Portfolio
Special Servicer with respect thereto under the Universal Hotel Portfolio
Pooling Agreement. The Servicer (or, with respect to any Specially Serviced
Loan, the Special Servicer) shall use reasonable best efforts consistent with
the Servicing Standards to enforce the rights of the Trustee (as holder of the
Universal Hotel Portfolio Mortgage Loan) under the Universal Hotel Portfolio
Intercreditor Agreement and the Universal Hotel Portfolio Pooling Agreement.
(l) The parties hereto acknowledge that the Universal Hotel
Portfolio Mortgage Loan is subject to the terms and conditions of the Universal
Hotel Portfolio Intercreditor Agreement and further acknowledge that, pursuant
to the Universal Hotel Portfolio Intercreditor Agreement, (i) the Universal
Hotel Portfolio Mortgage Loan is to be serviced and administered by the
Universal Hotel Portfolio Master Servicer in accordance with the Universal Hotel
Portfolio Pooling Agreement, and (ii) in the event that (A) the Universal Hotel
Portfolio Senior Companion Note and the Universal Hotel Portfolio B Notes are no
longer part of the trust fund created by the Universal Hotel Portfolio Pooling
Agreement and (B) the Universal Hotel Portfolio Mortgage Loan is included in the
Trust Fund, then, as set forth in the Universal Hotel Portfolio Intercreditor
Agreement, the Universal Hotel Portfolio Whole Loan shall be serviced in
accordance with the applicable provisions of the Universal Hotel Portfolio
Pooling Agreement as if such agreement was still in full force and effect with
respect to the Universal Hotel Portfolio Whole Loan, until such time as a new
servicing agreement has been agreed to by the parties to the Universal Hotel
Portfolio Intercreditor Agreement in accordance with the provisions of such
agreement and confirmation has been obtained from the Rating Agencies that such
new servicing agreement would not result in a downgrade, qualification or
withdrawal of the then current ratings of any Class of Certificates then
outstanding.
Section 3.02 Collection of Mortgage Loan Payments. (a) Each of the
Master Servicer and the Special Servicer shall make reasonable efforts to
collect all payments called for under the terms and provisions of the Mortgage
Loans and Companion Loans (subject to the right of certain Companion Holders to
receive payments directly from the related Mortgagor pursuant to the related
Intercreditor Agreement) it is obligated to service hereunder, and shall follow
such collection procedures as are consistent with this Agreement (including,
without limitation, the Servicing Standards); provided, that with respect to the
Mortgage Loans that have Anticipated Repayment Dates, so long as the related
Mortgagor is in compliance with each provision of the related Mortgage Loan
documents, the Master Servicer and the Special Servicer, shall not take any
enforcement action with respect to the failure of the related Mortgagor to make
any payment of Excess Interest, other than requests for collection, until the
maturity date of the related Mortgage Loan or the outstanding principal balance
of such Mortgage Loan has been paid in full; provided that the Master Servicer
or Special Servicer, as the case may be, may take action to enforce the Trust
Fund's right to apply excess cash flow to principal in accordance with the terms
of the Mortgage Loan documents. The Master Servicer or the Special Servicer, as
applicable, may in its discretion waive any Penalty Charge in connection with
any delinquent payment on a Mortgage Loan or Companion Loan it is obligated to
service hereunder two times during any period of twenty-four consecutive months
with respect to any Mortgage Loan or Companion Loan; provided, that the Master
Servicer or the Special Servicer, as applicable, may in its discretion waive any
Penalty Charge in connection with any delinquent payment on a Mortgage Loan or
Companion Loan one additional time in such 24-month period so long as no Advance
or additional Trust Fund expense has been incurred and remains unreimbursed to
the Trust with respect to such Mortgage Loan or Companion Loan. Any additional
waivers during such 24-month period with respect to such Mortgage Loan may be
made only after the Master Servicer or Special Servicer, as applicable, has
given notice of a proposed waiver to the Directing Certificateholder, and the
Directing Certificateholder has consented to such additional waiver (provided,
that if the Master Servicer or Special Servicer, as applicable, fails to receive
a response to such notice from the Directing Certificateholder in writing within
five (5) days of giving such notice, then the Directing Certificateholder shall
be deemed to have consented to such proposed waiver).
(b) All amounts collected on any Mortgage Loan or Companion Loan in
the form of payments from Mortgagors, Insurance and Condemnation Proceeds or
Liquidation Proceeds shall be applied to amounts due and owing under the related
Mortgage (including, without limitation, for principal and accrued and unpaid
interest) in accordance with the express provisions of the related Mortgage
(and, with respect to each Loan Pair, the related Intercreditor Agreement) and,
in the absence of such express provisions, such payments from Mortgagors,
Insurance and Condemnation Proceeds or Liquidation Proceeds shall be applied
(after reimbursement first to the Trustee and second to the Master Servicer for
any related outstanding Advances (including Workout-Delayed Reimbursement
Amounts that have not been reimbursed to the Master Servicer) and interest
thereon as provided herein and unpaid servicing compensation, Liquidation
Expenses and related additional Trust Fund expenses): first, as a recovery of
accrued and unpaid interest on such Mortgage Loan or Companion Loan, as
applicable, at the related Mortgage Rate in effect from time to time to but not
including the Due Date in the Due Period of receipt; second, as a recovery of
Unliquidated Advances, third as a recovery of principal of such Mortgage Loan
then due and owing, in each case, that were paid from collections on the
Mortgage Loans and resulted in principal distributed to the Certificateholders
being reduced as a result of the first proviso in the definition of "Principal
Distribution Amount", "Loan Group 1 Principal Distribution Amount" or "Loan
Group 2 Principal Distribution Amount"; fourth, as a recovery of Nonrecoverable
Advances; fifth, in accordance with the Servicing Standards, as a recovery of
any other amounts due and owing on such Mortgage Loan or Companion Loan, as
applicable, including, without limitation, Penalty Charges, Yield Maintenance
Charges and Excess Interest; and sixth, as a recovery of principal of such
Mortgage Loan or Companion Loan, as applicable, to the extent of its entire
unpaid principal balance. Notwithstanding the preceding, such provisions shall
not be deemed to affect the priority of distributions of payments. To the extent
that such amounts are paid by a party other than a Mortgagor, such amounts shall
be deemed to have been paid in respect of a purchase of all or part of the
Mortgaged Property (in the case of Insurance and Condemnation Proceeds or
Liquidation Proceeds) and then paid by the Mortgagor under the Mortgage Loan or
Companion Loan, as applicable, in accordance with the preceding sentence.
Amounts collected on any REO Loan shall be deemed to be applied in accordance
with the definition thereof.
(c) To the extent consistent with the terms of the Mortgage Loans
(and, with respect to each Loan Pair, the related Companion Loan and
Intercreditor Agreement) and applicable law, the Master Servicer shall apply all
Insurance and Condemnation Proceeds it receives on a day other than the Due Date
to amounts due and owing under the related Mortgage Loan or Companion Loan as if
such Insurance and Condemnation Proceeds were received on the Due Date
immediately succeeding the month in which such Insurance and Condemnation
Proceeds were received.
(d) In the event that the Master Servicer or Special Servicer
receives Excess Interest prior to the Determination Date for any Due Period, or
receives notice from the related Mortgagor that the Master Servicer or Special
Servicer will be receiving Excess Interest prior to the Determination Date for
any Due Period, the Master Servicer or Special Servicer, as applicable, will
promptly notify the Paying Agent. None of the Master Servicer, the Special
Servicer or the Paying Agent shall be responsible for any failure of the related
Mortgagor to pay any such Excess Interest. The preceding statements shall not,
however, be construed to limit the provisions of Section 3.02(a).
(e) With respect to any Mortgage Loan in connection with which the
Mortgagor was required to escrow funds or to post a letter of credit related to
obtaining certain performance objectives described in the applicable Mortgage
Loan documents, the Master Servicer shall, to the extent consistent with the
Servicing Standards, hold such escrows, letters of credit and proceeds thereof
as additional collateral and not apply such items to reduce the principal
balance of such Mortgage Loan unless otherwise required to do so pursuant to the
applicable Mortgage Loan documents, applicable law or court order.
(f) Promptly following the Closing Date, the Trustee shall send
written notice (in the form attached hereto as Exhibit R) to the Universal Hotel
Portfolio Master Servicer stating that, as of the Closing Date, the Trustee is
the holder of the Universal Hotel Portfolio Mortgage Loan and directing the
Universal Hotel Portfolio 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 Universal Hotel Portfolio
Mortgage Loan under the Universal Hotel Portfolio Intercreditor Agreement and
the Universal Hotel Portfolio Pooling Agreement. The Master Servicer shall,
within one Business Day of receipt, deposit into the Certificate Account all
amounts received with respect to the Universal Hotel Portfolio Mortgage Loan,
the Universal Hotel Portfolio Mortgaged Property or any related REO Property.
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts. (a) The Master Servicer shall establish and maintain one or
more accounts (the "Servicing Accounts"), into which all Escrow Payments shall
be deposited and retained, and shall administer such Servicing Accounts in
accordance with the Mortgage Loan documents and Companion Loan documents.
Amounts on deposit in Servicing Accounts may only be invested in accordance with
the terms of the related Mortgage Loan documents or in Permitted Investments in
accordance with the provisions of Section 3.06. Servicing Accounts shall be
Eligible Accounts to the extent permitted by the terms of the related Mortgage
Loan documents. Withdrawals of amounts so deposited from a Servicing Account may
be made only to: (i) effect payment of items for which Escrow Payments were
collected and comparable items; (ii) reimburse the Trustee, and then the Master
Servicer for any Servicing Advances; (iii) refund to Mortgagors any sums as may
be determined to be overages; (iv) pay interest to Mortgagors on balances in the
Servicing Account, if required by applicable law or the terms of the related
Mortgage Loan or Companion Loan and as described below or, if not so required,
to the Master Servicer; (v) after the occurrence of an event of default under
the related Mortgage Loan or Companion Loan, apply amounts to the indebtedness
under the applicable Mortgage Loan or Companion Loan; (vi) withdraw amounts
deposited in error, (vii) pay Penalty Charges to the extent permitted by the
related Mortgage Loan documents, or (viii) clear and terminate the Servicing
Account at the termination of this Agreement in accordance with Section 9.01. As
part of its servicing duties, the Master Servicer shall pay or cause to be paid
to the Mortgagors interest on funds in Servicing Accounts, to the extent
required by law or the terms of the related Mortgage Loan or Companion Loan;
provided, however, that in no event shall the Master Servicer be required to
remit to any Mortgagor any amounts in excess of actual net investment income or
funds in the related Servicing Account. If allowed by the related Mortgage Loan
documents and applicable law, the Master Servicer may charge the related
Mortgagor an administrative fee for maintenance of the Servicing Accounts.
(b) The Special Servicer, in the case of REO Loans (other than any
REO Loan succeeding the Universal Hotel Portfolio Mortgage Loan), and the Master
Servicer, in the case of all other Mortgage Loans (other than the Universal
Hotel Portfolio Mortgage Loan) (and each Companion Loan), shall maintain
accurate records with respect to each 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. The Special Servicer, in the case of REO Loans
(other than any REO Loan succeeding the Universal Hotel Portfolio Mortgage
Loan), and the Master Servicer, in the case of all other Mortgage Loans (other
than the Universal Hotel Portfolio Mortgage Loan) and Companion Loans, shall use
reasonable efforts consistent with the Servicing Standards to obtain, from time
to time, all bills for the payment of such items (including renewal premiums)
and shall effect payment thereof from the REO Account or by the Master Servicer
as Servicing Advances prior to the applicable penalty or termination date and,
in any event, prior to the institution of foreclosure or similar proceedings
with respect to the related Mortgaged Property for nonpayment of such items,
employing for such purpose Escrow Payments (which shall be so applied by the
Master Servicer at the written direction of the Special Servicer in the case of
REO Loans) as allowed under the terms of the related Mortgage Loan or Companion
Loan (other than the Universal Hotel Portfolio Mortgage Loan). The Master
Servicer shall service and administer any reserve accounts (including
monitoring, maintaining or changing the amounts of required escrows) in
accordance with the terms of such Mortgage Loan and the Servicing Standards. To
the extent that a Mortgage Loan (other than the Universal Hotel Portfolio
Mortgage Loan) or a Companion Loan does not require a Mortgagor to escrow for
the payment of real estate taxes, assessments, insurance premiums, ground rents
(if applicable) and similar items, the Special Servicer, in the case of REO
Loans, and the Master Servicer, in the case of all other Mortgage Loans and
Companion Loans, shall use reasonable efforts consistent with the Servicing
Standards to cause the Mortgagor to comply with its obligation to make payments
in respect of such items at the time they first become due and, in any event,
prior to the institution of foreclosure or similar proceedings with respect to
the related Mortgaged Property for nonpayment of such items.
(c) In accordance with the Servicing Standards and for all Mortgage
Loans (other than the Universal Hotel Portfolio Mortgage Loan) and Loan Pairs,
the Master Servicer shall advance all such funds as are necessary for the
purpose of effecting the payment of (i) real estate taxes, assessments and other
similar items that are or may become a lien thereon, (ii) ground rents (if
applicable) and (iii) premiums on Insurance Policies, in each instance if and to
the extent Escrow Payments collected from the related Mortgagor (or related REO
Revenues, if applicable) are insufficient to pay such item when due and the
related Mortgagor has failed to pay such item on a timely basis, and provided,
however, that the particular advance would not, if made, constitute a
Nonrecoverable Servicing Advance and provided further, however, that with
respect to the payment of taxes and assessments, the Master Servicer shall not
be required to make such advance until the later of five Business Days after the
Master Servicer, the Special Servicer or the Trustee, as applicable, has
received confirmation that such item has not been paid or the date prior to the
date after which any penalty or interest would accrue in respect of such taxes
or assessments. The Special Servicer shall give the Master Servicer and the
Trustee no less than five Business Days' written (facsimile or electronic)
notice before the date on which the Master Servicer is requested to make any
Servicing Advance with respect to a given Specially Serviced Mortgage Loan or
REO Property; provided, however, that only two Business Days' written (facsimile
or electronic) notice shall be required in respect of Servicing Advances
required to be made on an emergency or urgent basis; provided further, that the
Special Servicer shall not be entitled to make such a request (other than for
Servicing Advances required to be made on an urgent or emergency basis) more
frequently than once per calendar month (although such request may relate to
more than one Servicing Advance). The Master Servicer may pay the aggregate
amount of such Servicing Advances listed on a monthly request to the Special
Servicer, in which case the Special Servicer shall remit such Servicing Advances
to the ultimate payees. In addition, the Special Servicer shall provide the
Master Servicer and the Trustee with such information in its possession as the
Master Servicer or the Trustee, as applicable, may reasonably request to enable
the Master Servicer or the Trustee, as applicable, to determine whether a
requested Servicing Advance would constitute a Nonrecoverable Advance. Any
request by the Special Servicer that the Master Servicer make a Servicing
Advance shall be deemed to be a determination by the Special Servicer that such
requested Servicing Advance is not a Nonrecoverable Servicing Advance, and the
Master Servicer shall be entitled to conclusively rely on such determination;
provided, that the determination shall not be binding on the Master Servicer or
Trustee. On the first Business Day after the Determination Date for the related
Distribution Date, the Special Servicer shall report to the Master Servicer if
the Special Servicer determines any Servicing Advance previously made by the
Master Servicer with respect to a Specially Serviced Mortgage Loan or REO Loan
is a Nonrecoverable Servicing Advance. The Master Servicer shall be entitled to
conclusively rely on such a determination, and such determination shall be
binding upon the Master Servicer, but shall no way limit the ability of the
Master Servicer in the absence of such determination to make its own
determination that any Advance is a Nonrecoverable Advance. All such Advances
shall be reimbursable in the first instance from related collections from the
Mortgagors and further as provided in Section 3.05. No costs incurred by the
Master Servicer or the Special 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 hereof, including, without limitation,
the Paying Agent's calculation of monthly distributions to Certificateholders,
be added to the unpaid principal balances of the related Mortgage Loans or the
Companion Loans, notwithstanding that the terms of such Mortgage Loans or the
Companion Loans so permit. If the Master Servicer fails to make any required
Servicing Advance as and when due (including any applicable cure periods), to
the extent the Trustee has actual knowledge of such failure, the Trustee shall
make such Servicing Advance pursuant to Section 7.05. Notwithstanding anything
herein to the contrary, no Servicing Advance shall be required hereunder if such
Servicing Advance would, if made, constitute a Nonrecoverable Servicing Advance.
In addition, the Master Servicer shall consider Unliquidated Advances in respect
of prior Servicing Advances for purposes of nonrecoverability determinations.
The Special Servicer shall have no obligation under this Agreement to make any
Servicing Advances.
Notwithstanding anything to the contrary contained in this Section
3.03(c), the Master Servicer may in its good faith judgment elect (but shall not
be required unless directed by the Special Servicer with respect to Specially
Serviced Mortgage Loans and REO Loans) to make a payment from amounts on deposit
in the Certificate Account (which shall be deemed first made from amounts
distributable as principal and then from all other amounts comprising general
collections) to pay for certain expenses set forth below notwithstanding that
the Master Servicer (or Special Servicer, as applicable) has determined that a
Servicing Advance with respect to such expenditure would be a Nonrecoverable
Servicing Advance (unless, with respect to Specially Serviced Mortgage Loans or
REO Loans, the Special Servicer has notified the Master Servicer to not make
such expenditure), where making such expenditure would prevent (i) the related
Mortgaged Property from being uninsured or being sold at a tax sale or (ii) any
event that would cause a loss of the priority of the lien of the related
Mortgage, or the loss of any security for the related Mortgage Loan; provided,
that in each instance, the Master Servicer or the Special Servicer, as
applicable, determines in accordance with the Servicing Standards (as evidenced
by an Officer's Certificate delivered to the Trustee) that making such
expenditure is in the best interest of the Certificateholders (and, if
applicable the Companion Holders), all as a collective whole. The Master
Servicer or Trustee may elect to obtain reimbursement of Nonrecoverable
Servicing Advances from the Trust Fund pursuant to the terms of Section 3.19(c).
The Master Servicer shall be entitled to reimbursement for any such
Nonrecoverable Servicing Advance in accordance with Section 3.03(d). The parties
acknowledge that pursuant to the Universal Hotel Portfolio Pooling Agreement,
the Universal Hotel Portfolio Master Servicer is obligated to make servicing
advances with respect to the Universal Hotel Portfolio Whole Loan. The Universal
Hotel Portfolio Master Servicer shall be entitled to reimbursement for
Nonrecoverable Servicing Advances with respect to the Universal Hotel Portfolio
Whole Loan (with, in each case, any accrued and unpaid interest thereon provided
for under the Universal Hotel Portfolio Pooling Agreement) in the manner set
forth in the Universal Hotel Portfolio Pooling Agreement and the Universal Hotel
Portfolio Intercreditor Agreement.
(d) In connection with its recovery of any Servicing Advance out of
the Certificate Account pursuant to Section 3.05(a), the Trustee and then the
Master Servicer, as the case may be, shall be entitled to receive, out of any
amounts then on deposit in the Certificate Account interest at the Reimbursement
Rate in effect from time to time, accrued on the amount of such Servicing
Advance from the date made to, but not including, the date of reimbursement. The
Master Servicer shall reimburse itself or the Trustee, as the case may be, for
any outstanding Servicing Advance as soon as practically possible after funds
available for such purpose are deposited in the Certificate Account.
(e) To the extent an operations and maintenance plan is required to
be established and executed pursuant to the terms of a Mortgage Loan (other than
the Universal Hotel Portfolio Mortgage Loan), the Master Servicer shall request
from the Mortgagor written confirmation thereof within a reasonable time after
the later of the Closing Date and the date as of which such plan is required to
be established or completed. To the extent any repairs, capital improvements,
actions or remediations are required to have been taken or completed pursuant to
the terms of the Mortgage Loan (other than the Universal Hotel Portfolio
Mortgage Loan), the Master Servicer shall request from the Mortgagor written
confirmation of such actions and remediations within a reasonable time after the
later of the Closing Date and the date as of which such action or remediations
are required to be or to have been taken or completed. To the extent a Mortgagor
shall fail to promptly respond to any inquiry described in this Section 3.03(e),
the Master Servicer shall, in accordance with the Servicing Standards, determine
whether the related Mortgagor has failed to perform its obligations under the
related Mortgage Loan and report any such failure to the Special Servicer within
a reasonable time after the later of December 15, 2005 and the date as of which
such actions or remediations are required to be or have been taken or completed.
Section 3.04 The Certificate Account, the Lower-Tier and Upper-Tier
Distribution Accounts, the Companion Distribution Account, the Interest Reserve
Account, the Gain-on-Sale Reserve Account and the Excess Interest Distribution
Account. (a) The Master Servicer shall establish and maintain, or cause to be
established and maintained, a Certificate Account in which the Master Servicer
shall deposit or cause to be deposited on a daily basis and in no event later
than the Business Day following receipt of available funds (in the case of
payments by Mortgagors or other collections on the Mortgage Loans or Companion
Loans), except as otherwise specifically provided herein, the following payments
and collections received or made by or on behalf of it subsequent to the Cut-off
Date (other than in respect of principal and interest on the Mortgage Loans or
Companion Loans due and payable on or before the Cut-off Date, which payments
shall be delivered promptly to the appropriate Mortgage Loan Seller or its
designee and other than any amounts received from Mortgagors which are received
in connection with the purchase of defeasance collateral), or payments (other
than Principal Prepayments) received by it on or prior to the Cut-off Date but
allocable to a period subsequent thereto:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans or Companion Loans;
(ii) all payments on account of interest on the Mortgage Loans or
Companion Loans, including Excess Interest, Yield Maintenance Charges and
Default Interest;
(iii) late payment charges and other Penalty Charges to the extent
required to offset interest on Advances and additional Trust Fund expenses
(other than Special Servicing Fees, Workout Fees or Liquidation Fees) as
required by Section 3.11;
(iv) all Insurance and Condemnation Proceeds and Liquidation
Proceeds (other than Gain-on-Sale Proceeds) received in respect of any
Mortgage Loan, Companion Loan or REO Property (other than Liquidation
Proceeds that are received in connection with the purchase by the Master
Servicer, the Special Servicer, the Holders of the Controlling Class, or
the Holders of the Class LR Certificates of all the Mortgage Loans and any
REO Properties in the Trust Fund and that are to be deposited in the
Lower-Tier Distribution Account pursuant to Section 9.01) together with
any recovery of Unliquidated Advances in respect of the related Mortgage
Loans;
(v) any amounts required to be transferred from the REO Account
pursuant to Section 3.16(c);
(vi) 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 Certificate Account; and
(vii) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a deductible clause in a blanket hazard or master single
interest policy.
Notwithstanding the foregoing requirements, the Master Servicer need
not deposit into the Certificate Account any amount that the Master Servicer
would be authorized to withdraw immediately from such account in accordance with
the terms of Section 3.05 and shall be entitled to instead immediately pay such
amount directly to the Person(s) entitled thereto; provided, that such amounts
shall be applied in accordance with the terms hereof and shall be reported as if
deposited in the Certificate Account and then withdrawn.
The foregoing requirements for deposit in the Certificate Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, actual payments from Mortgagors in the nature of
Escrow Payments, charges for beneficiary statements or demands, assumption fees,
modification fees, extension fees, defeasance fees, or amounts collected for
Mortgagor checks returned for insufficient funds need not be deposited by the
Master Servicer in the Certificate Account. If the Master Servicer shall deposit
in the Certificate Account any amount not required to be deposited therein, it
may at any time withdraw such amount from the Certificate Account, any provision
herein to the contrary notwithstanding. Assumption, extension and modification
fees actually received from Mortgagors on Specially Serviced Mortgage Loans
shall be promptly delivered to the Special Servicer as additional servicing
compensation.
Upon receipt of any of the foregoing amounts in clauses (i)-(iv)
above with respect to any Specially Serviced Mortgage Loans, the Special
Servicer shall remit within one (1) Business Day such amounts to the Master
Servicer for deposit into the Certificate Account, in accordance with this
Section 3.04(a). Any such amounts received by the Special Servicer with respect
to an REO Property shall be deposited by the Special Servicer into the REO
Account and remitted to the Master Servicer for deposit into the Certificate
Account, pursuant to Section 3.16(c). With respect to any such amounts paid by
check to the order of the Special Servicer, the Special Servicer shall endorse
without recourse or warranty such check to the order of the Master Servicer and
shall promptly deliver any such check to the Master Servicer by overnight
courier.
Funds in the Certificate Account may only be invested in Permitted
Investments in accordance with the provisions of Section 3.06. As of the Closing
Date, the Certificate Account shall be located at the offices of Escrow Bank,
Midvale, Utah. The Master Servicer shall give notice to the Trustee, the Special
Servicer, the Paying Agent and the Depositor of the new location of the
Certificate Account prior to or promptly after any change thereof.
(b) The Paying Agent, on behalf of the Trustee, shall establish and
maintain the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account, the Interest Reserve Account
and the Gain-on-Sale Reserve Account in trust for the benefit of the
Certificateholders (and the Trustee as holder of the Uncertificated Lower-Tier
Interests). The Master Servicer shall deliver to the Paying Agent each month, on
or before the P&I Advance Date therein, for deposit in the Lower-Tier
Distribution Account, that portion of the Available Distribution Amount
attributable to the Mortgage Loans (in each case, calculated without regard to
clauses (a)(iv), (a)(viii), (c) and (d) of the definition of Available
Distribution Amount) for the related Distribution Date then on deposit in the
Certificate Account after giving effect to withdrawals of funds pursuant to
Section 3.05(a)(ii)-(xx).
With respect to the Companion Loans (excluding the Universal Hotel
Portfolio Companion Loans), the Companion Paying Agent shall establish and
maintain an account, which may be a subaccount of the Certificate Account, for
distributions to each Companion Holder (the "Companion Distribution Account") to
be held for the benefit of the related Companion Holder and shall, promptly upon
receipt, deposit in the Companion Distribution Account any and all amounts
received by the Companion Paying Agent that are required by the terms of this
Agreement to be deposited therein. The Master Servicer shall deliver to the
Companion Paying Agent each month, on or before the P&I Advance Date therein,
for deposit in the Companion Distribution Account, an aggregate amount of
immediately available funds, to the extent of available funds, equal to the
amount to be distributed to the related Companion Holder pursuant to the terms
of this Agreement and the related Intercreditor Agreement.
The Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account, the Gain-on-Sale Reserve
Account, the Interest Reserve Account and the Companion Distribution Account may
be subaccounts of a single Eligible Account, which shall be maintained as a
segregated account separate from other accounts.
In addition to the amounts required to be deposited in the
Lower-Tier Distribution Account pursuant to the third preceding paragraph, the
Master Servicer shall, as and when required hereunder, deliver to the Paying
Agent for deposit in the Lower-Tier Distribution Account:
(i) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.19 as Compensating Interest Payments in connection
with Prepayment Interest Shortfalls;
(ii) any P&I Advances required to be made by the Master Servicer in
accordance with Section 4.03;
(iii) any Liquidation Proceeds paid by the Master Servicer, the
Special Servicer, the Holders of the Controlling Class or the Holders of
the Class LR Certificates in connection with the purchase of all of the
Mortgage Loans and any REO Properties in the Trust Fund pursuant to
Section 9.01 (exclusive of that portion thereof required to be deposited
in the Certificate Account pursuant to Section 9.01);
(iv) any Yield Maintenance Charges actually collected; and
(v) any other amounts required to be so delivered for deposit in the
Lower-Tier Distribution Account pursuant to any provision of this
Agreement.
If, as of the close of business (New York City time), on any P&I
Advance Date or on such other date as any amount referred to in the foregoing
clauses (i) through (v) are required to be delivered hereunder, the Master
Servicer shall not have delivered to the Paying Agent for deposit in the
Lower-Tier Distribution Account and the Excess Interest Distribution Account the
amounts required to be deposited therein pursuant to the provisions of this
Agreement (including any P&I Advance pursuant to Section 4.03(a) hereof), the
Master Servicer shall pay the Paying Agent interest on such late payment at the
Prime Rate from and including the date such payment was required to be made
(without regard to any grace period set forth in Section 7.01(a)(i)) until (but
not including) the date such late payment is received by the Paying Agent.
The Paying Agent shall, upon receipt, deposit in the Lower-Tier
Distribution Account or the Excess Interest Distribution Account, as applicable,
any and all amounts received by the Paying Agent that are required by the terms
of this Agreement to be deposited therein.
Promptly on each Distribution Date, the Paying Agent shall be deemed
to withdraw from the Lower-Tier Distribution Account and deposit in the
Upper-Tier Distribution Account an aggregate amount of immediately available
funds equal to the Lower-Tier Regular Distribution Amount and the amount of any
Yield Maintenance Charges for such Distribution Date allocated in payment of the
Uncertificated Lower-Tier Interests as specified in Sections 4.01(b) and
4.01(d), respectively.
Funds on deposit in the Gain-on-Sale Reserve Account, the Interest
Reserve Account, the Excess Interest Distribution Account, the Upper-Tier
Distribution Account and the Lower-Tier Distribution Account shall remain
uninvested. As of the Closing Date, the Interest Reserve Account, the Upper-Tier
Distribution Account and the Lower-Tier Distribution Account shall be located at
the offices of the Paying Agent. The Paying Agent shall give notice to the
Trustee, the Master Servicer and the Depositor of the location of the Interest
Reserve Account, the Upper-Tier Distribution Account, the Lower-Tier
Distribution Account, the Excess Interest Distribution Account and, if
established, the Gain-on-Sale Reserve Account, and of the proposed location of
such accounts prior to any change thereof.
(c) Prior to any Determination Date for the first Due Period during
which Excess Interest is received on any Mortgage Loan, and upon notification
from the Master Servicer or Special Servicer pursuant to Section 3.02(d), the
Paying Agent, on behalf of the Certificateholders, shall establish and maintain
the Excess Interest Distribution Account in the name of the Paying Agent in
trust for the benefit of the Class S Certificateholders. The Excess Interest
Distribution Account shall be established and maintained as an Eligible Account
(or as a subaccount of an Eligible Account). Prior to the applicable
Distribution Date, the Master Servicer shall remit to the Paying Agent for
deposit in the Excess Interest Distribution Account an amount equal to the
Excess Interest received prior to the Determination Date for the applicable Due
Period.
Following the distribution of Excess Interest to Class S
Certificateholders on the first Distribution Date after which there are no
longer any Mortgage Loans outstanding which pursuant to their terms could pay
Excess Interest, the Paying Agent shall terminate the Excess Interest
Distribution Account.
(d) The Paying Agent shall establish (upon notice from the Special
Servicer of an event occurring that generates Gain-on-Sale Proceeds) and
maintain the Gain-on-Sale Reserve Account in trust for the benefit of the
Certificateholders. The Gain-on-Sale Reserve Account shall be maintained as an
Eligible Account (or as a subaccount of an Eligible Account), separate and apart
from trust funds for mortgage pass-through certificates of other series
administered by the Paying Agent. Funds in the Gain-on-Sale Reserve Account
shall be held uninvested.
Upon the disposition of any REO Property in accordance with Section
3.09 or Section 3.18, the Special Servicer will calculate the Gain-on-Sale
Proceeds, if any, realized in connection with such sale and remit such funds to
the Paying Agent for deposit into the Gain-on-Sale Reserve Account, other than
Gain-on-Sale Proceeds allocable to the Companion Loans, which shall be remitted
to the Companion Paying Agent for deposit into the Companion Distribution
Account.
Section 3.05 Permitted Withdrawals from the Certificate Account, the
Distribution Accounts, the Companion Distribution Account and the Excess
Interest Distribution Account. (a) The Master Servicer may, from time to time,
make withdrawals from the Certificate Account for any of the following purposes
(without duplication):
(i) no later than 4:00 p.m. New York City time on each P&I Advance
Date, to remit to the Paying Agent for deposit in the Lower-Tier
Distribution Account and the Excess Interest Distribution Account the
amounts required to be remitted pursuant to the first paragraph of Section
3.04(b) and Section 3.04(c) or that may be applied to make P&I Advances
pursuant to Section 4.03(a); and pursuant to the second paragraph of
Section 3.04(b), to remit to the Companion Paying Agent for deposit in the
Companion Distribution Account the amounts required to be so deposited on
the date specified in the related Intercreditor Agreement with respect to
the Companion Loans;
(ii) (A) to pay itself unpaid Servicing Fees in respect of each
Mortgage Loan, Companion Loan, Specially Serviced Mortgage Loan and REO
Loan, as applicable, the Master Servicer's rights to payment of Servicing
Fees pursuant to this clause (ii)(A) with respect to any Mortgage Loan,
Companion Loan, Specially Serviced Mortgage Loan or REO Loan, as
applicable, being limited to amounts received on or in respect of such
Mortgage Loan or Companion Loan (whether in the form of payments,
Liquidation Proceeds or Insurance and Condemnation Proceeds) or such REO
Loan (whether in the form of REO Revenues, Liquidation Proceeds or
Insurance and Condemnation Proceeds), that are allocable as recovery of
interest thereon and (B) to pay the Special Servicer any unpaid Special
Servicing Fees, Liquidation Fees and Workout Fees in respect of each
Specially Serviced Mortgage Loan or REO Loan or Corrected Mortgage Loan,
as applicable, and any expense incurred by the Special Servicer in
connection with performing any inspections pursuant to Section 3.12(a),
remaining unpaid first, out of related REO Revenues, Liquidation Proceeds
and Insurance and Condemnation Proceeds, and then out of general
collections on the Mortgage Loans and REO Properties;
(iii) to reimburse the Trustee and itself, as applicable (in that
order), for xxxxxxxxxxxx X&X Advances, the Master Servicer's or the
Trustee's right to reimbursement pursuant to this clause (iii) being
limited to amounts received which represent Late Collections of interest
(net of the related Servicing Fees, and with respect to the Universal
Hotel Portfolio Mortgage Loan, Universal Hotel Portfolio Loan Servicing
Fee Rate) on and principal of the particular Mortgage Loans and REO Loans
with respect to which such P&I Advances were made; provided, however, that
if such P&I Advance becomes a Workout-Delayed Reimbursement Amount, then
such P&I Advance may additionally thereafter be reimbursed from the
portion of general collections and recoveries on or in respect of the
Mortgage Loans and REO Properties on deposit in the Certificate Account
from time to time that represent collections or recoveries of principal to
the extent provided in clause (v) below (to be allocated between the Loan
Groups as set forth in the last paragraph of Section 3.05 (a)); or, in the
circumstances specified in Section 3.19(c), from general collections;
(iv) to reimburse the Trustee and itself, as applicable (in that
order), for unreimbursed Servicing Advances, the Master Servicer's or the
Trustee's respective rights to receive payment pursuant to this clause
(iv) with respect to any Mortgage Loan (other than the Universal Hotel
Portfolio Mortgage Loan), Companion Loan or REO Property being limited to,
as applicable, related payments, Liquidation Proceeds, Insurance and
Condemnation Proceeds and REO Revenues (provided, that, in case of such
reimbursement relating to an AB Mortgage Loan, such reimbursements shall
be made first, from amounts collected on the related Companion Loan and
then from the related Mortgage Loan subject to the terms of the related
Intercreditor Agreement); provided, however, that if such Servicing
Advance becomes a Workout-Delayed Reimbursement Amount, then such
Servicing Advance may additionally thereafter be reimbursed from the
portion of general collections and recoveries on or in respect of the
Mortgage Loans and REO Properties on deposit in the Certificate Account
from time to time that represent collections or recoveries of principal to
the extent provided in clause (v) below (to be allocated between the Loan
Groups as set forth in the last paragraph of Section 3.05(a)) or, in the
circumstances specified in Section 3.19(c), from general collections;
(v) to reimburse Trustee and itself, as applicable (in that order)
(1) for Nonrecoverable Advances first, out of REO Revenues, Liquidation
Proceeds and Insurance and Condemnation Proceeds received on the related
Mortgage Loan and Companion Loan then, if the Mortgage Loan has not been
foreclosed or liquidated then out of the principal portion of general
collections on the Mortgage Loans and REO Properties (to be allocated
between the Loan Groups as set forth in the last paragraph of Section 3.05
(a)), then, to the extent the principal portion of general collections is
insufficient and with respect to such excess only, subject to any exercise
of the sole option to defer reimbursement thereof pursuant to Section
3.19(c), out of other collections on the Mortgage Loans and REO Properties
and, (2) with respect to the Workout-Delayed Reimbursement Amounts, out of
the principal portion of the general collections on the Mortgage Loans and
REO Properties (to be allocated between the Loan Groups as set forth in
the last paragraph of Section 3.05 (a)), net of such amounts being
reimbursed pursuant to (1) above (provided, that in case of such
reimbursement relating to an AB Mortgage Loan, such reimbursement shall be
made first, from amounts collected on the related Companion Loan and then
from the related Mortgage Loan subject to the terms of the related
Intercreditor Agreement) or to pay itself, with respect to any Mortgage
Loan and the Companion Loans, if applicable, or REO Property any related
earned Servicing Fee that remained unpaid in accordance with clause (ii)
above following a Final Recovery Determination made with respect to such
Mortgage Loan or REO Property and the deposit into the Certificate Account
of all amounts received in connection therewith;
(vi) at such time as it reimburses the Trustee and itself, as
applicable (in that order) for (a) any xxxxxxxxxxxx X&X Advance (including
any such P&I Advance that constitutes a Workout-Delayed Reimbursement
Amount) pursuant to clause (iii) above, to pay itself and/or the Trustee
or such other servicing party, as applicable, any interest accrued and
payable thereon in accordance with Sections 4.03(d) and 3.11(c), (b) any
unreimbursed Servicing Advances (including any such Servicing Advance that
constitutes a Workout-Delayed Reimbursement Amount) pursuant to clause
(iv) above, to pay itself or the Trustee, as the case may be, any interest
accrued and payable thereon in accordance with Sections 3.03(d) and
3.11(c) or (c) any Nonrecoverable Advances pursuant to clause (v) above,
to pay itself or the Trustee or such other servicing party, as the case
may be, any interest accrued and payable thereon;
(vii) to reimburse itself, the Special Servicer or the Trustee, as
the case may be, for any unreimbursed expenses reasonably incurred by such
Person in respect of any Breach or Defect giving rise to a repurchase or
substitution obligation of the applicable Mortgage Loan Seller under
Section 6 of the applicable Mortgage Loan Purchase Agreement, including,
without limitation, any expenses arising out of the enforcement of the
repurchase or substitution obligation, each such Person's right to
reimbursement pursuant to this clause (vii) with respect to any Mortgage
Loan or Companion Loan being limited to that portion of the Purchase Price
or Substitution Shortfall Amount paid with respect to such Mortgage Loan
or Companion Loan that represents such expense in accordance with clause
(iv) of the definition of Purchase Price; provided that, in case of such
reimbursement relating to an AB Mortgage Loan, such reimbursements shall
be made first, from amounts collected on the related Companion Loan and
then from the related AB Mortgage Loan to the extent provided in the
related Intercreditor Agreement;
(viii) in accordance with Section 2.03(e), to reimburse itself or
the Special Servicer, as the case may be, first, out of Liquidation
Proceeds, Insurance and Condemnation Proceeds, and then out of general
collections on the Mortgage Loans and REO Properties, for any unreimbursed
expense reasonably incurred by such Person in connection with the
enforcement of the applicable Mortgage Loan Seller's obligations under
Section 6 of the applicable Mortgage Loan Purchase Agreement, but only to
the extent that such expenses are not reimbursable pursuant to clause
(vii) above or otherwise (provided, that in case of such reimbursement
relating to an AB Mortgage Loan, such reimbursements shall be made first,
from amounts collected on the related Companion Loan and then from the
related Mortgage Loan subject to the terms of the related Intercreditor
Agreement);
(ix) to pay for costs and expenses incurred by the Trust Fund
pursuant to Section 3.09(c) first, out of REO Revenues, Liquidation
Proceeds, Insurance and Condemnation Proceeds, and then out of general
collections on the Mortgage Loans and REO Properties (provided, that in
case of such reimbursement relating to an AB Mortgage Loan, such
reimbursements shall be made first, from amounts collected on the related
Companion Loan and then from the related Mortgage Loan in accordance with
the terms of the related Intercreditor Agreement);
(x) to pay itself, as additional servicing compensation in
accordance with Section 3.11(a), (a) (A) interest and investment income
earned in respect of amounts relating to the Trust Fund held in the
Certificate Account and the Companion Distribution Account as provided in
Section 3.06(b) (but only to the extent of the Net Investment Earnings
with respect to the Certificate Account and the Companion Distribution
Account for the period from and including the prior Distribution Date to
and including the P&I Advance Date related to such Distribution Date) and
(B) Penalty Charges (other than Penalty Charges collected while the
related Mortgage Loan is a Specially Serviced Mortgage Loan), but only to
the extent collected from the related Mortgagor and to the extent that all
amounts then due and payable with respect to the related Mortgage Loan
have been paid and such Penalty Charges are not needed to pay interest on
Advances or costs and expenses incurred by the Trust Fund (other than
Special Servicing Fees) in accordance with Section 3.11(d); and (b) to pay
the Special Servicer, as additional servicing compensation in accordance
with Section 3.11(c), Penalty Charges collected on Specially Serviced
Mortgage Loans (but only to the extent collected from the related
Mortgagor and to the extent that all amounts then due and payable with
respect to the related Specially Serviced Mortgage Loan have been paid and
such Penalty Charges are not needed to pay interest on Advances or costs
and expenses incurred by the Trust Fund in accordance with Section
3.11(d));
(xi) to recoup any amounts deposited in the Certificate Account in
error;
(xii) to pay itself, the Special Servicer, the Depositor or any of
their respective directors, officers, members, managers, employees and
agents, as the case may be, out of general collections, any amounts
payable to any such Person pursuant to Section 6.03(a) or 6.03(b)
(provided, that in case of such payments relating to an AB Mortgage Loan,
such reimbursements shall be made first, from amounts collected on the
related Companion Loan and then from the related Mortgage Loan subject to
the terms of the related Intercreditor Agreement prior to being payable
out of general collections);
(xiii) to pay for (a) the cost of the Opinions of Counsel
contemplated by Sections 3.09(b), 3.16(a), 3.17(b), 3.20(a), 3.20(d) and
10.01(f) to the extent payable out of the Trust Fund, (b) the cost of any
Opinion of Counsel contemplated by Section 11.01(a) or 11.01(c) in
connection with an amendment to this Agreement requested by the Trustee or
the Master Servicer, which amendment is in furtherance of the rights and
interests of Certificateholders and (c) the cost of obtaining the REO
Extension contemplated by Section 3.16(a) (provided, that in case of such
payments relating to an AB Mortgage Loan, such reimbursements shall be
made first, from amounts collected on the related Companion Loan and then
from the related Mortgage Loan subject to the terms of the related
Intercreditor Agreement prior to being payable out of general
collections);
(xiv) to pay out of general collections on the Mortgage Loans and
REO Properties any and all federal, state and local taxes imposed on the
Upper-Tier REMIC, the Lower-Tier REMIC, or any of their assets or
transactions, together with all incidental costs and expenses, to the
extent that none of the Master Servicer, the Special Servicer, the Paying
Agent or the Trustee is liable therefor pursuant to Section 10.01(g);
(xv) to reimburse the Paying Agent out of general collections on the
Mortgage Loans and REO Properties for expenses incurred by and
reimbursable to it by the Trust Fund pursuant to Section 10.01(c);
(xvi) to pay itself, the Special Servicer or the applicable Mortgage
Loan Seller, as the case may be, with respect to each Mortgage Loan, if
any, previously purchased by such Person pursuant to this Agreement, all
amounts received thereon subsequent to the date of purchase; or, in the
case of the substitution for a Mortgage Loan by a Mortgage Loan Seller
pursuant to Section 2.03(b), to pay such Mortgage Loan Seller with respect
to the replaced Mortgage Loan all amounts received thereon subsequent to
the date of substitution, and with respect to the related Qualified
Substitute Mortgage Loan(s), all Monthly Payments due thereon during or
prior to the month of substitution, in accordance with the last two
sentences of the first paragraph of Section 2.03(b);
(xvii) to remit to the Paying Agent for deposit in the Interest
Reserve Account the amounts required to be deposited in the Interest
Reserve Account pursuant to Section 3.25;
(xviii) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01;
(xix) to remit to the Companion Paying Agent for deposit into the
Companion Distribution Account the amounts required to be deposited
pursuant to the second paragraph of Section 3.04(b); and
(xx) to pay for any expenditures to be borne by the Trust Fund
pursuant to the second paragraph of Section 3.03(c).
The Master Servicer shall also be entitled to make withdrawals from
time to time, from the Certificate Account of amounts necessary for the payments
or reimbursement of amounts required to be paid to the Universal Hotel Portfolio
Master Servicer, Universal Hotel Portfolio Special Servicer, Universal Hotel
Portfolio Trustee or Universal Hotel Portfolio Paying Agent by the holder of the
Universal Hotel Portfolio Mortgage Loan pursuant to the Universal Hotel
Portfolio Intercreditor Agreement and the Universal Hotel Portfolio Pooling
Agreement.
The Master Servicer shall keep and maintain separate accounting
records, on a loan by loan and property by property basis when appropriate, for
the purpose of justifying any withdrawal from the Certificate Account.
The Master Servicer shall pay to the Special Servicer or the Paying
Agent from the Certificate Account amounts permitted to be paid to it therefrom
monthly upon receipt of a certificate of a Servicing Officer of the Special
Servicer or a Responsible Officer of the Paying Agent describing the item and
amount to which the Special Servicer or the Paying Agent is entitled. The Master
Servicer may rely conclusively on any such certificate and shall have no duty to
re-calculate the amounts stated therein. The Special Servicer shall keep and
maintain separate accounting for each Specially Serviced Mortgage Loan and REO
Loan, on a loan-by-loan and property-by-property basis, for the purpose of
justifying any request for withdrawal from the Certificate Account. To the
extent a Nonrecoverable Advance or Workout-Delayed Reimbursement Amount with
respect to a Mortgage Loan is required to be reimbursed from the principal
portion of the general collections on the Mortgage Loans pursuant to clauses
(iii), (iv) or (v) of this Section 3.05(a), such reimbursement shall be made
first, from the principal collection available on the Mortgage Loans included in
the same Loan Group as such Mortgage Loan and if the principal collections in
such Loan Group are not sufficient to make such reimbursement in full, then from
the principal collections available in the other Loan Group (after giving effect
to any reimbursement of Nonrecoverable Advances and Workout-Delayed
Reimbursement Amounts related to such other Loan Group). To the extent a
Nonrecoverable Advance with respect to a Mortgage Loan is required to be
reimbursed from the interest portion of the general collections on the Mortgage
Loans pursuant to clauses (iii), (iv) or (v) of this Section 3.05(a), such
reimbursement shall be made first, from the interest collections available on
the Mortgage Loans included in the same Loan Group as such Mortgage Loan and if
the interest collections in such Loan Group are not sufficient to make such
reimbursement in full, then from the interest collections available in the other
Loan Group (after giving effect to any reimbursement of Nonrecoverable Advances
related to such other Loan Group).
(b) The Paying Agent may, from time to time, make withdrawals from
the Lower-Tier Distribution Account for any of the following purposes:
(i) to be deemed to make deposits of the Lower-Tier Regular
Distribution Amount pursuant to Section 4.01(b) and to distribute the
amount of any Yield Maintenance Charges distributable pursuant to Section
4.01(d) in the Upper-Tier Distribution Account, subject to the penultimate
paragraph of Section 3.04(b), and to make distributions on the Class LR
Certificates pursuant to Section 4.01(b);
(ii) to pay to the Trustee and the Paying Agent or any of their
directors, officers, employees and agents, as the case may be, any amounts
payable or reimbursable to any such Person, with respect to the Mortgage
Loans, pursuant to Section 8.05(b);
(iii) to pay the Trustee or the Paying Agent, the Trustee Fee and
the Paying Agent Fee as contemplated by Section 8.05(a) hereof with
respect to the Mortgage Loans;
(iv) to pay for the cost of the Opinions of Counsel sought by the
Trustee or the Paying Agent (A) as provided in clause (v) of the
definition of "Disqualified Organization," (B) as contemplated by Section
3.20(d), 8.02(ii) and 10.01(f), 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 or the Paying Agent, which amendment is in furtherance of
the rights and interests of Certificateholders, in each case, to the
extent not paid pursuant to Section 11.01(g);
(v) to pay any and all federal, state and local taxes imposed on
either the Lower-Tier REMIC or Upper-Tier REMIC or on the assets or
transactions of any such REMIC, together with all incidental costs and
expenses, to the extent none of the Trustee, the Paying Agent, the REMIC
Administrator, the Master Servicer or the Special Servicer is liable
therefor pursuant to Section 10.01(g);
(vi) to pay the REMIC Administrator any amounts reimbursable to it
pursuant to Section 10.01(e);
(vii) to pay to the Master Servicer any amounts deposited by the
Master Servicer in the Distribution Account not required to be deposited
therein; and
(viii) to clear and terminate the Lower-Tier Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
(c) The Paying Agent shall, on any Distribution Date, make
withdrawals from the Excess Interest Distribution Account to the extent required
to make the distributions of Excess Interest required by Section 4.01(i).
(d) The Paying Agent on behalf of the Trustee may make, or be deemed
to make, withdrawals from the Upper-Tier Distribution Account for any of the
following purposes:
(i) to make distributions to Certificateholders (other than Holders
of the Class LR Certificates) on each Distribution Date pursuant to
Section 4.01 or 9.01, as applicable, subject to the penultimate paragraph
of Section 3.04; and
(ii) to clear and terminate the Upper-Tier Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
(e) Notwithstanding anything herein to the contrary, with respect to
any Mortgage Loan, (i) if amounts on deposit in the Certificate Account and the
Lower-Tier Distribution Account are not sufficient to pay the full amount of the
Servicing Fee listed in Section 3.05(a)(ii) and the Trustee Fee listed in
Section 3.05(b)(ii) and (iii), then the Trustee Fee shall be paid in full prior
to the payment of any Servicing Fees payable under Section 3.05(a)(ii) and in
the event that amounts on deposit in the Certificate Account and the Lower-Tier
Distribution Account are not sufficient to pay the full amount of such Trustee
Fee, the Trustee and the Paying Agent shall be paid based on the amount of such
fees and (ii) if amounts on deposit in the Certificate Account are not
sufficient to reimburse the full amount of Advances and interest thereon listed
in Sections 3.05(a)(iii), (iv), (v) and (vi), then reimbursements shall be paid
first to the Trustee and Paying Agent and second to the Master Servicer.
(f) The Companion Paying Agent may, from time to time, make
withdrawals from the Companion Distribution Account to make distributions
pursuant to Section 4.01(j).
Section 3.06 Investment of Funds in the Certificate Account and the
REO Account. (a) The Master Servicer may direct any depository institution
maintaining the Certificate Account, the Companion Distribution Account, or any
Servicing Account (for purposes of this Section 3.06, an "Investment Account"),
the Special Servicer may direct any depository institution maintaining the REO
Account (also for purposes of this Section 3.06, an "Investment Account") to
invest or if it is such depository institution, may itself invest, the funds
held therein, only in one or more Permitted Investments bearing interest or sold
at a discount, and maturing, unless payable on demand, (i) 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, if a
Person other than the depository institution maintaining such account is the
obligor thereon and (ii) no later than the date on which such funds are required
to be withdrawn from such account pursuant to this Agreement, if the depository
institution maintaining such account is the obligor thereon. All such Permitted
Investments shall be held to maturity, unless payable on demand. Any investment
of funds in an Investment Account shall be made in the name of the Trustee (in
its capacity as such). The Master Servicer (in the case of the Certificate
Account, the Companion Distribution Account or any Servicing Account maintained
by or for the Master Servicer) or the Special Servicer (in the case of the REO
Account or any Servicing Account maintained by or for the Special Servicer), on
behalf of the Trustee, shall maintain continuous physical possession of any
Permitted Investment of amounts in the Certificate Account, the Companion
Distribution Account, the Servicing Accounts or REO Account, as applicable, that
is either (i) a "certificated security," as such term is defined in the UCC
(such that the Trustee shall have control pursuant to Section 8-106 of the UCC)
or (ii) other property in which a secured party may perfect its security
interest by physical possession under the UCC or any other applicable law. In
the case of any Permitted Investment held in the form of a "security
entitlement" (within the meaning of Section 8-102(a)(17) of the UCC), the Master
Servicer or the Special Servicer, as applicable, shall take or cause to be taken
such action as the Trustee deems reasonably necessary to cause the Trustee to
have control over such security entitlement. In the event amounts on deposit in
an Investment Account are at any time invested in a Permitted Investment payable
on demand, the Master Servicer (in the case of the Certificate Account, the
Companion Distribution Account or any Servicing Account maintained by or for the
Master Servicer), the Special Servicer (in the case of the REO Account or any
Servicing Account maintained by or for the Special Servicer) shall:
(i) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the lesser
of (a) all amounts then payable thereunder and (b) the amount required to
be withdrawn on such date; and
(ii) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer, the Special Servicer or the Trustee,
as the case may be, that such Permitted Investment would not constitute a
Permitted Investment in respect of funds thereafter on deposit in the
Investment Account.
(b) Interest and investment income realized on funds deposited in
the Certificate Account, the Companion Distribution Account or any Servicing
Account maintained by or for the Master Servicer, to the extent of the Net
Investment Earnings, if any, with respect to such account for the period from
and including the prior Distribution Date to and including the P&I Advance Date
related to such Distribution Date, shall be for the sole and exclusive benefit
of the Master Servicer to the extent (with respect to Servicing Accounts) not
required to be paid to the related Mortgagor and shall be subject to its
withdrawal, or withdrawal at its direction, in accordance with Sections 3.03 or
Section 3.05(a), as the case may be. Interest and investment income realized on
funds deposited in the REO Account or any Servicing Account maintained by or for
the Special Servicer, to the extent of the Net Investment Earnings, if any, with
respect to such account for each period from and including any Distribution Date
to and including the immediately succeeding P&I Advance Date, 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(c). In the event that any loss shall
be incurred in respect of any Permitted Investment (as to which the Master
Servicer or Special Servicer, as applicable, would have been entitled to any Net
Investment Earnings hereunder) directed to be made by the Master Servicer or
Special Servicer, as applicable, and on deposit in any of the Certificate
Account, the Companion Distribution Account, the Servicing Account or the REO
Account, the Master Servicer (in the case of the Certificate Account, the
Companion Distribution Account or any Servicing Account maintained by or for the
Master Servicer) and the Special Servicer (in the case of the REO Account or any
Servicing Account maintained by or for the Special Servicer) shall deposit
therein, no later than the P&I Advance Date, without right of reimbursement, the
amount of Net Investment Loss, if any, with respect to such account for the
period from and including the prior Distribution Date to and including the P&I
Advance Date related to such Distribution Date; provided, that neither the
Master Servicer nor the Special Servicer shall be required to deposit any loss
on an investment 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 that holds such Investment Account, so
long as such depository institution or trust company satisfied the
qualifications set forth in the definition of Eligible Account at the time such
investment was made (and, with respect to the Master Servicer, such federal or
state chartered depository institution or trust company is not an Affiliate of
the Master Servicer unless such depository institution or trust company
satisfied the qualification set forth in the definition of Eligible Account both
(x) at the time the investment was made and (y) 30 days prior to such
insolvency).
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Master Servicer may and, upon the request of Holders of
Certificates 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.
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage. (a) The Master Servicer (with respect to the Mortgage
Loans and the Specially Serviced Mortgage Loans) or the Special Servicer (with
respect to the REO Properties) shall use its efforts consistent with the
Servicing Standards to cause the Mortgagor to maintain, (other than with respect
to the Universal Hotel Portfolio Mortgage Loan) to the extent required by the
terms of the related Mortgage Loan, all insurance coverage as is required under
the related Mortgage Loan except to the extent that the failure of the related
Mortgagor to do so is an Acceptable Insurance Default. If the Mortgagor does not
so maintain such insurance coverage, subject to its recoverability determination
with respect to any required Servicing Advance, the Master Servicer (with
respect to Mortgage Loans and at the direction of the Special Servicer in the
case of a Specially Serviced Mortgage Loan) or the Special Servicer (with
respect to REO Properties) shall maintain, for each Mortgage Loan (other than
the Universal Hotel Portfolio Mortgage Loan) all insurance coverage as is
required under the related Mortgage, but only in the event the Trustee has an
insurable interest therein and such insurance is available to the Master
Servicer or the Special Servicer and, if available, can be obtained at
commercially reasonable rates, except to the extent that the failure of the
related Mortgagor to do so is an Acceptable Insurance Default; provided,
however, that if any Mortgage permits the holder thereof to dictate to the
Mortgagor the insurance coverage to be maintained on such Mortgaged Property,
the Master Servicer or the Special Servicer, as applicable, shall impose such
insurance requirements as are consistent with the Servicing Standards, provided,
that with respect to the immediately preceding proviso, the Master Servicer will
not be obligated to maintain insurance against property damage resulting from
terrorist or similar acts if the Mortgagor's failure is an Acceptable Insurance
Default (as determined by the Special Servicer) and only in the event the
Trustee has an insurable interest therein and such insurance is available to the
Master Servicer. Subject to Section 3.17(a) and the costs of such insurance
being reimbursed or paid to the Special Servicer as provided in the last
sentence of this paragraph, the Special Servicer shall maintain for each REO
Property no less insurance coverage than was previously required of the
Mortgagor under the related Mortgage Loan and Companion Loan unless the Special
Servicer, with Directing Certificateholder consent, determines that such
insurance is not available at commercially reasonable rates. All Insurance
Policies maintained by the Master Servicer or the Special Servicer shall (i)
contain a "standard" mortgagee clause, with loss payable to the Master Servicer
on behalf of the Trustee (in the case of insurance maintained in respect of
Mortgage Loans and Companion Loans other than REO Properties) or to the Special
Servicer on behalf of the Trustee (in the case of insurance maintained in
respect of REO Properties), (ii) be in the name of the Trustee (in the case of
insurance maintained in respect of REO Properties), (iii) include coverage in an
amount not less than the lesser of (x) the full replacement cost of the
improvements securing Mortgaged Property or the REO Property, as applicable, or
(y) the outstanding principal balance owing on the related Mortgage Loan,
Companion Loan or REO Loan, as applicable, and in any event, the amount
necessary to avoid the operation of any co-insurance provisions, (iv) include a
replacement cost endorsement providing no deduction for depreciation (unless
such endorsement is not permitted under the related Mortgage Loan documents),
(v) be noncancellable without 30 days prior written notice to the insured party
(except in the case of nonpayment, in which case such policy shall not be
cancelled without 10 days prior notice) and (vi) be issued by a Qualified
Insurer authorized under applicable law to issue such Insurance Policies. Any
amounts collected by the Master Servicer or the Special Servicer under any such
Insurance 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 in accordance with the Servicing
Standards and the provisions of the related Mortgage Loan and Companion Loan)
shall be deposited in the Certificate Account, subject to withdrawal pursuant to
Section 3.05(a). Any costs incurred by the Master Servicer in maintaining any
such Insurance Policies in respect of Mortgage Loans and Companion Loans (other
than REO Properties) (i) if the Mortgagor defaults on its obligation to do so,
shall be advanced by the Master Servicer as a Servicing Advance and will be
charged to the related Mortgagor and (ii) shall not, for purposes of calculating
monthly distributions to Certificateholders, be added to the unpaid principal
balance of the related Mortgage Loan and Companion Loan, notwithstanding that
the terms of such Mortgage Loan or Companion Loan so permit. Any cost incurred
by the Special Servicer in maintaining any such Insurance Policies with respect
to REO Properties shall be an expense of the Trust payable out of the related
REO Account pursuant to Section 3.16(c) or, if the amount on deposit therein is
insufficient therefor, advanced by the Master Servicer as a Servicing Advance.
Notwithstanding the foregoing, with respect to the Mortgage Loans
that either (x) require the Mortgagor to maintain "all risk" property insurance
(and do not expressly permit an exclusion for terrorism) or (y) contain
provisions generally requiring the applicable Mortgagor to maintain insurance in
types and against such risks as the holder of such Mortgage Loan reasonably
requires from time to time in order to protect its interests, the Master
Servicer will be required to, consistent with the Servicing Standards, (A)
actively monitor whether the insurance policies for the related Mortgaged
Property contain Additional Exclusions, (B) request the Mortgagor to either
purchase insurance against the risks specified in the Additional Exclusions or
provide an explanation as to its reasons for failing to purchase such insurance
and (C) notify the Special Servicer if it has knowledge that any insurance
policy contains Additional Exclusions or if it has knowledge that any borrower
fails to purchase the insurance requested to be purchased by the Master Servicer
pursuant to clause (B) above. If the Special Servicer determines in accordance
with the related Servicing Standard that such failure is not an Acceptable
Insurance Default, the Special Servicer shall notify the Master Servicer and the
Master Servicer shall be required to use efforts consistent with the Servicing
Standards to cause the Mortgagor to maintain such insurance. Furthermore, the
Special Servicer shall inform the Rating Agencies as to such conclusions for
those Mortgage Loans that (i) have one of the ten (10) highest outstanding
Stated Principal Balances of all of the Mortgage Loans then included in the
Trust or (ii) comprise more than 5% of the outstanding Stated Principal Balance
of the Mortgage Loans then included in the Trust. During the period that the
Special Servicer is evaluating the availability of such insurance, neither the
Master Servicer nor the Directing Certificateholder will be liable for any loss
related to the failure to require the Mortgagor to maintain such insurance and
will not be in default of its obligations as a result of such failure and the
Master Servicer will not itself maintain such insurance or cause such insurance
to be maintained.
(b) (i) If the Master Servicer or the Special Servicer shall obtain
and maintain a blanket Insurance Policy with a Qualified Insurer insuring
against fire and hazard losses on all of the Mortgage Loans or REO Properties,
as the case may be, required to be serviced and administered hereunder, then, to
the extent such Insurance Policy provides protection equivalent to the
individual policies otherwise required, the Master Servicer or the Special
Servicer shall conclusively be deemed to have satisfied its obligation to cause
fire and hazard insurance to be maintained on the related Mortgaged Properties
or REO Properties. Such Insurance Policy may contain a deductible clause, in
which case the Master Servicer or the Special Servicer shall, if there shall not
have been maintained on the related Mortgaged Property or REO Property a fire
and hazard Insurance Policy complying with the requirements of Section 3.07(a),
and there shall have been one or more losses which would have been covered by
such Insurance Policy, promptly deposit into the Certificate Account from its
own funds the amount of such loss or losses that would have been covered under
the individual policy but are not covered under the blanket Insurance Policy
because of such deductible clause to the extent that any such deductible exceeds
the deductible limitation that pertained to the related Mortgage Loan or in the
absence of such deductible limitation, the deductible limitation which is
consistent with the Servicing Standards. In connection with its activities as
administrator and Master Servicer of the Mortgage Loans, the Master Servicer
agrees to prepare and present, on behalf of itself, the Trustee and
Certificateholders, claims under any such blanket Insurance Policy in a timely
fashion in accordance with the terms of such policy. The Special Servicer, to
the extent consistent with the Servicing Standards, may maintain, earthquake
insurance on REO Properties, provided coverage is available at commercially
reasonable rates, the cost of which shall be a Servicing Advance.
(ii) If the Master Servicer or the Special Servicer shall
cause any Mortgaged Property or REO Property to be covered by a master
single interest or force-placed insurance policy with a Qualified Insurer
naming the Master Servicer or the Special Servicer on behalf of the
Trustee as the loss payee, then to the extent such Insurance Policy
provides protection equivalent to the individual policies otherwise
required, the Master Servicer or the Special Servicer shall conclusively
be deemed to have satisfied its obligation to cause such insurance to be
maintained on the related Mortgaged Properties and REO Properties. In the
event the Master Servicer or the Special Servicer shall cause any
Mortgaged Property or REO Property to be covered by such master single
interest or force-placed insurance policy, the incremental costs of such
insurance applicable to such Mortgaged Property or REO Property (i.e.,
other than any minimum or standby premium payable for such policy whether
or not any Mortgaged Property or REO Property is covered thereby) shall be
paid by the Master Servicer as a Servicing Advance. Such master single
interest or force-placed policy may contain a deductible clause, in which
case the Master Servicer or the Special Servicer shall, in the event that
there shall not have been maintained on the related Mortgaged Property or
REO Property a policy otherwise complying with the provisions of Section
3.07(a), and there shall have been one or more losses which would have
been covered by such policy had it been maintained, deposit into the
Certificate Account from its own funds the amount not otherwise payable
under the master single or force-placed interest policy because of such
deductible clause, to the extent that any such deductible exceeds the
deductible limitation that pertained to the related Mortgage Loan or, in
the absence of any such deductible limitation, the deductible limitation
which is consistent with the Servicing Standards.
(c) Each of the Master Servicer and the Special Servicer shall
obtain and maintain at its own expense and keep in full force and effect
throughout the term of this Agreement a blanket fidelity bond and an errors and
omissions Insurance Policy with a Qualified Insurer covering the Master
Servicer's and the Special Servicer's, as applicable, officers and employees
acting on behalf of the Master Servicer and the Special Servicer in connection
with its activities under this Agreement. Notwithstanding the foregoing, so long
as the long term debt or the deposit obligations or claims-paying ability of the
Master Servicer or the Special Servicer, as applicable, is rated at least "A" by
S&P and "A2" by Xxxxx'x, the Master Servicer or the Special Servicer, as
applicable, shall be allowed to provide self-insurance with respect to a
fidelity bond and an "errors and omissions" Insurance Policy. Such amount of
coverage shall be, with respect to non-multifamily Mortgage Loans, in such form
and amount as are consistent with the Servicing Standards or, with respect to
multifamily Mortgage Loans, at least equal to the coverage that would be
required by Xxxxxx Mae or Xxxxxxx Mac, whichever is greater, with respect to the
Master Servicer or the Special Servicer if the Master Servicer or the Special
Servicer, as applicable, were servicing and administering the Mortgage Loans or
Specially Serviced Mortgage Loans, as applicable, for Xxxxxx Mae or Xxxxxxx Mac.
Coverage of the Master Servicer or the Special Servicer under a policy or bond
obtained by an Affiliate of the Master Servicer or the Special Servicer and
providing the coverage required by this Section 3.07(c) shall satisfy the
requirements of this Section 3.07(c). The Special Servicer and the Master
Servicer will promptly report in writing to the Trustee any material changes
that may occur in their respective fidelity bonds, if any, and/or their
respective errors and omissions Insurance Policies, as the case may be, and will
furnish to the Trustee copies of all binders and policies or certificates
evidencing that such bonds, if any, and insurance policies are in full force and
effect. The Master Servicer and the Special Servicer shall each cause the
Trustee to be an additional loss payee on any policy currently in place or
procured pursuant to the requirements of this Section 3.07(c).
(d) At the time the Master Servicer determines in accordance with
the Servicing Standards that any Mortgaged Property is in a federally designated
special flood hazard area (and such flood insurance has been made available),
the Master Servicer will use efforts consistent with the Servicing Standards to
cause the related Mortgagor (in accordance with applicable law and the terms of
the Mortgage Loan documents) to maintain, and, if the related Mortgagor shall
default in its obligation to so maintain, shall itself maintain to the extent
available at commercially reasonable rates (as determined by the Master Servicer
or the Special Servicer, as applicable, in accordance with the Servicing
Standards and to the extent the Trustee, as mortgagee, has an insurable interest
therein), flood insurance in respect thereof, but only to the extent the related
Mortgage Loan permits the mortgagee to require such coverage and the maintenance
of such coverage is consistent with the Servicing Standards. Such flood
insurance shall be in an amount equal to the lesser of (i) the unpaid principal
balance of the related Mortgage Loan, and (ii) the maximum amount of insurance
which is available under the National Flood Insurance Act of 1968, as amended.
If the cost of any insurance described above is not borne by the Mortgagor, the
Master Servicer shall promptly make a Servicing Advance for such costs.
(e) During all such times as any REO Property shall be located in a
federally designated special flood hazard area, the Special Servicer will cause
to be maintained, to the extent available at commercially reasonable rates (as
determined by the Special Servicer in accordance with the Servicing Standards),
a flood insurance policy meeting the requirements of the current guidelines of
the Federal Insurance Administration in an amount representing coverage not less
than the maximum amount of insurance which is available under the National Flood
Insurance Act of 1968, as amended. The cost of any such flood insurance with
respect to an REO Property shall be an expense of the Trust payable out of the
related REO Account pursuant to Section 3.16(c) or, if the amount on deposit
therein is insufficient therefor, paid by the Master Servicer as a Servicing
Advance.
Section 3.08 Enforcement of Due-on-Sale Clauses; Assumption
Agreements. (a) As to each Mortgage Loan or Companion Loan which contains a
provision in the nature of a "due-on-sale" clause, which by its terms:
(i) provides that such Mortgage Loan or Companion Loan shall (or may
at the mortgagee's option) become due and payable upon the sale or other
transfer of an interest in the related Mortgaged Property; or
(ii) provides that such Mortgage Loan or Companion Loan may not be
assumed without the consent of the mortgagee in connection with any such
sale or other transfer,
then, for so long as such Mortgage Loan or Companion Loan is being serviced
under this Agreement, the Special Servicer or, with respect to all Non-Specially
Serviced Mortgage Loans, the Master Servicer, on behalf of the Trustee as the
mortgagee of record, shall exercise (or waive its right to exercise) (provided,
that (i) with respect to all Non-Specially Serviced Mortgage Loans, the Master
Servicer has obtained the prior written consent of the Special Servicer, which
consent shall be deemed given 15 Business Days after receipt by the Special
Servicer from the Master Servicer (unless earlier objected to) of the Master
Servicer's analysis and recommendation with respect to such waiver together with
such other information reasonably required by the Special Servicer, (ii) with
respect to all Specially Serviced Mortgage Loans and Non-Specially Serviced
Mortgage Loans, the Special Servicer shall, prior to consenting to such a
proposed action of the Master Servicer, obtain, and, prior to itself taking such
an action, the Special Servicer shall obtain, the prior written consent of the
Directing Certificateholder, which consent shall be deemed given 10 Business
Days after receipt (unless earlier objected to) by the Directing
Certificateholder of the Master Servicer's or Special Servicer's, as applicable,
analysis and recommendation with respect to such waiver together with such other
information reasonably required by the Directing Certificateholder, and (iii)
with respect to any Mortgage Loan (x) with a Stated Principal Balance greater
than or equal to $20,000,000, (y) with a Stated Principal Balance greater than
5% of the aggregate Stated Principal Balance of all the Mortgage Loans then
outstanding or (z) together with any other Mortgage Loans cross-collateralized
with such Mortgage Loan, or together with all other Mortgage Loans with the same
or an affiliated Mortgagor, is one of the ten largest of the then outstanding
Mortgage Loans, by Stated Principal Balance, the Master Servicer or the Special
Servicer, as applicable, shall not take such action unless it has obtained
confirmation from each Rating Agency stating that none of the then-current
rating or ratings of all outstanding Classes of the Certificates would be
qualified, downgraded or withdrawn by such Rating Agency, as a result of such
waiver) any right it may have with respect to such Mortgage Loan (x) to
accelerate the payments thereon or (y) to withhold its consent to the sale or
transfer.
If any Mortgage Loan or Companion Loan provides that such Mortgage
Loan or Companion Loan may be assumed or transferred without the consent of the
mortgagee provided that certain conditions are satisfied, then for so long as
such Mortgage Loan or Companion Loan is being serviced under this Agreement, the
Special Servicer, with respect to all Specially Serviced Mortgage Loans, on
behalf of the Trustee as the mortgagee of record, shall determine in accordance
with the Servicing Standards whether such conditions have been satisfied, or,
with respect to all Non-Specially Serviced Mortgage Loans, the Master Servicer,
on behalf of the Trustee as mortgagee of record, shall provide the Special
Servicer with the Master Servicer's analysis and determination (which shall be
made in accordance with the Servicing Standards) with respect to whether such
conditions have been satisfied, together with all information reasonably
requested by the Special Servicer, and the Special Servicer shall indicate its
agreement or disagreement with such determination, which agreement shall be
deemed to have been given five (5) Business Days after receipt by the Special
Servicer of the Master Servicer's analysis and determination together with all
information reasonably requested by the Special Servicer (unless objected to
earlier).
The Master Servicer shall not process or permit any such assumption
or transfer if:
(i) the Master Servicer determines that such conditions have been
satisfied but the Special Servicer disagrees; or
(ii) the Master Servicer determines that such conditions have not
been satisfied and the Special Servicer agrees; or
(iii) the Master Servicer determines that such conditions have not
been satisfied and the Special Servicer's agreement is deemed.
The Master Servicer shall not process or permit any such assumption
or transfer for Specially Serviced Mortgage Loans.
The Master Servicer shall process or permit such assumption or
transfer if:
(i) the Master Servicer determines that such conditions have not
been satisfied but the Special Servicer disagrees; or
(ii) the Master Servicer determines that such conditions have been
satisfied and the Special Servicer agrees; or
(iii) the Master Servicer determines that such conditions have been
satisfied and the Special Servicer's agreement is deemed.
(b) As to each Mortgage Loan (other than the Universal Hotel
Portfolio Mortgage Loan) and Companion Loan which contains a provision in the
nature of a "due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan and Companion Loan shall (or
may at the mortgagee's option) become due and payable upon the creation of
any additional lien or other encumbrance on the related Mortgaged
Property; or
(ii) requires the consent of the mortgagee to the creation of any
such additional lien or other encumbrance on the related Mortgaged
Property;
then, for so long as such Mortgage Loan and Companion Loan is serviced under
this Agreement, the Special Servicer or, with respect to all Non-Specially
Serviced Mortgage Loans, the Master Servicer, on behalf of the Trustee as the
mortgagee of record, shall exercise (or waive its right to exercise) (provided,
that (i) (a) with respect to all Non-Specially Serviced Mortgage Loans, the
Master Servicer has made a recommendation and obtained the prior written consent
of the Special Servicer, which consent shall be deemed given ten (10) Business
Days after receipt by the Special Servicer from the Master Servicer of the
Master Servicer's analysis and recommendation with respect to such waiver
together with such other information reasonably required by the Special Servicer
and (b) the Special Servicer has obtained (i) the prior written consent of the
Directing Certificateholder, which consent shall be deemed given 10 Business
Days after receipt by the Directing Certificateholder of the Special Servicer's
analysis and recommendation with respect to such waiver together with such other
information reasonably required by the Directing Certificateholder, and (ii)
from each Rating Agency a confirmation that such waiver would not result in the
downgrade, withdrawal or qualification of the then-current ratings on any Class
of outstanding Certificates if such Mortgage Loan (1) has an outstanding
principal balance (together with any Mortgage Loans cross-collateralized with
such Mortgage Loan) that is greater than or equal to 2% of the Stated Principal
Balance of the outstanding Mortgage Loans or (2) has an LTV Ratio (including
existing and proposed debt) greater than 85% (including any proposed debt) or
(3) a Debt Service Coverage Ratio less than 1.20x (in each case, determined
based upon the aggregate of the Stated Principal Balance of the Mortgage Loan
and the principal amount of the proposed additional loan) or (4) is one of the
ten (10) largest Mortgage Loans (by Stated Principal Balance) or (5) has a
Stated Principal Balance over $20,000,000) any right it may have with respect to
such Mortgage Loan (x) to accelerate the payments thereon or (y) to withhold its
consent to the creation of any such additional lien or other encumbrance, in a
manner consistent with the Servicing Standards.
If any Mortgage Loan or Companion Loan provides that such Mortgage
Loan or Companion Loan may be further encumbered without the consent of the
mortgagee provided that certain conditions are satisfied, then for so long as
such Mortgage Loan or Companion Loan is being serviced under this Agreement, the
Special Servicer, on behalf of the Trustee as the mortgagee of record, shall
determine whether such conditions have been satisfied, or, with respect to all
Non-Specially Serviced Mortgage Loans, the Master Servicer, on behalf of the
Trustee as mortgagee of record, shall provide the Special Servicer with the
Master Servicer's analysis and determination with respect to whether such
conditions have been satisfied, together with all information reasonably
requested by the Special Servicer, and the Special Servicer shall indicate its
agreement or disagreement with such determination, which agreement shall be
deemed five (5) Business Days after receipt by the Special Servicer of the
Master Servicer's analysis and determination together with all information
reasonably requested by the Special Servicer.
The Master Servicer shall not process or permit such further
encumbrance if:
(i) the Master Servicer determines that such conditions have been
satisfied but the Special Servicer disagrees; or
(ii) the Master Servicer determines that such conditions have not
been satisfied and the Special Servicer agrees; or
(iii) the Master Servicer determines that such conditions have not
been satisfied and the Special Servicer's agreement is deemed.
The Master Servicer shall not process or permit any such encumbrance
for Specially Serviced Mortgage Loans.
The Master Servicer shall process or permit such further encumbrance
if:
(i) the Master Servicer determines that such conditions have not
been satisfied but the Special Servicer disagrees; or
(ii) the Master Servicer determines that such conditions have been
satisfied and the Special Servicer agrees; or
(iii) the Master Servicer determines that such conditions have been
satisfied and the Special Servicer's agreement is deemed.
(c) Nothing in this Section 3.08 shall constitute a waiver of the
Trustee's right, as the mortgagee of record, to receive notice of any assumption
of a Mortgage Loan, any sale or other transfer of the related Mortgaged Property
or the creation of any additional lien or other encumbrance with respect to such
Mortgaged Property.
(d) Except as otherwise permitted by Sections 3.20 and 3.08(a), (b)
and (e), neither the Master Servicer nor the Special Servicer shall agree to
modify, waive or amend any term of any Mortgage Loan in connection with the
taking of, or the failure to take, any action pursuant to this Section 3.08. The
Master Servicer and the Special Servicer shall each provide copies of any
waivers it effects pursuant to Section 3.08(a) or (b) to the other and each
Rating Agency with respect to each Mortgage Loan. To the extent not previously
provided, the Master Servicer shall provide copies of any waivers it effects
pursuant to Section 3.08(a) or (b) to the Special Servicer and each Rating
Agency with respect to each Mortgage Loan.
(e) Notwithstanding any other provisions of this Section 3.08 or
Section 3.20, the Master Servicer may with respect to Non-Specially Serviced
Mortgage Loans, without any Directing Certificateholder approval, Rating Agency
confirmation or Special Servicer approval (provided, the Master Servicer
delivers notice thereof to the Special Servicer and Directing Certificateholder,
except to the extent that the Special Servicer or the Directing
Certificateholder, as the case may be, notifies the Master Servicer that such
party does not desire to receive copies of such items), (i) grant waivers of
non-material covenant defaults (other than financial covenants), including late
financial statements; (ii) grant releases of non-material, non-income producing
parcels of a Mortgaged Property that do not materially affect the use or value
of the Mortgaged Property or the ability of the related Mortgagor to pay amounts
due in respect of the Mortgage Loan as and when due provided such releases are
required by the related Mortgage Loan documents; (iii) approve or consent to
grants of easements or right of way for utilities, access, parking, public
improvements or another purpose or subordinations of the lien of Mortgage Loans
to easements that do not materially affect the use or value of a Mortgaged
Property or a Mortgagor's ability to make any payments with respect to the
related Mortgage Loan; (iv) grant other routine approvals, including the
granting of subordination, non-disturbance and attornment agreements and leasing
consents that affect less than the lesser of (a) 25% of the net rentable area of
the Mortgaged Property, or (b) 30,000 square feet; (v) consents to actions
related to condemnation of non-material, non-income producing parcels of the
Mortgaged Property that do not materially affect the use or value of the
Mortgaged Property or the ability of the related Mortgagor to pay amounts due in
respect of the Mortgage Loan or Companion Loan as and when due; (vi) consents to
a change in property management relating to any Mortgage Loan or Companion Loan
with respect to Mortgage Loans or Companion Loans with an outstanding principal
balance of less than $2,500,000; and (vii) approve of annual operating budgets;
provided, that any such modification, waiver or amendment (w) would not in any
way affect a payment term of the Certificates, (x) would not constitute a
"significant modification" of such Mortgage Loan or Companion Loan pursuant to
Treasury Regulations Section 1.860G-2(b) and would not otherwise cause either
the Upper-Tier REMIC or Lower-Tier REMIC to fail to qualify as a REMIC or cause
the Grantor Trust to fail to qualify as a grantor trust under subpart E, Part I
of subchapter J of the Code for federal income tax purposes, (y) agreeing to
such modification, waiver or amendment would be consistent with the Servicing
Standards, and (z) agreeing to such modification, waiver or amendment shall not
violate the terms, provisions or limitations of this Agreement or any other
document contemplated hereby.
(f) Notwithstanding any other provision of this Agreement, the
Master Servicer may not waive its rights or grant its consent under any "due on
sale" or "due on encumbrance" clause without the consent of the Special Servicer
and the Special Servicer may not waive its rights or grant its consent under any
"due-on-sale" or "due-on-encumbrance" clause relating to a Non-Specially
Serviced Mortgage Loan having a Stated Principal Balance greater than or equal
to $2,500,000 or relating to any Specially Serviced Mortgage Loan without the
consent of the Directing Certificateholder. The Directing Certificateholder
shall have 10 Business Days after receipt of notice along with the Master
Servicer's or Special Servicer's recommendation and analysis with respect to
such waiver and any additional information the Directing Certificateholder may
reasonably request from the Special Servicer of a proposed waiver or consent
under any "due on sale" or "due on encumbrance" clause in which to grant or
withhold its consent (provided, that if the Special Servicer fails to receive a
response to such notice from the Directing Certificateholder in writing within
such period, then the Directing Certificateholder shall be deemed to have
consented to such proposed waiver or consent).
Section 3.09 Realization Upon Defaulted Mortgage Loans. (a) The
Special Servicer shall, subject to subsections (b) through (d) of this Section
3.09 and Section 3.29, exercise reasonable efforts, consistent with the
Servicing Standards, to foreclose upon or otherwise comparably convert (which
may include an REO Acquisition) the ownership of property securing such Mortgage
Loans or Companion Loans, as come into and continue in default as to which no
satisfactory arrangements can be made for collection of delinquent payments, and
which are not released from the Trust Fund pursuant to any other provision
hereof. The foregoing is subject to the provision that, in any case in which a
Mortgaged Property shall have suffered damage from an Uninsured Cause, the
Master Servicer or Special Servicer shall not be required to make a Servicing
Advance and expend funds toward the restoration of such property unless the
Special Servicer has determined in its reasonable discretion that such
restoration will increase the net proceeds of liquidation of such Mortgaged
Property to Certificateholders after reimbursement to the Master Servicer for
such Servicing Advance, and the Master Servicer or Special Servicer has not
determined that such Servicing Advance together with accrued and unpaid interest
thereon would constitute a Nonrecoverable Advance. The costs and expenses
incurred by the Special Servicer in any such proceedings shall be advanced by
the Master Servicer, provided, that in each case, such cost or expense would
not, if incurred, constitute a Nonrecoverable Servicing Advance. Nothing
contained in this Section 3.09 shall be construed so as to require the Master
Servicer or the Special Servicer, on behalf of the Trust, to make a bid on any
Mortgaged Property at a foreclosure sale or similar proceeding that is in excess
of the fair market value of such property, as determined by the Master Servicer
or the Special Servicer in its reasonable judgment taking into account the
factors described in Section 3.18(b) and the results of any Appraisal obtained
pursuant to the following sentence, all such bids to be made in a manner
consistent with the Servicing Standards. If and when the Special Servicer or the
Master Servicer deems it necessary and prudent for purposes of establishing the
fair market value of any Mortgaged Property securing a Defaulted Mortgage Loan
or defaulted Companion Loan, whether for purposes of bidding at foreclosure or
otherwise, the Special Servicer or the Master Servicer, as the case may be, is
authorized to have an Appraisal performed with respect to such property by an
Independent MAI-designated appraiser the cost of which shall be paid by the
Master Servicer as a Servicing Advance.
(b) The Special Servicer shall not acquire any personal property
pursuant to this Section 3.09 unless either:
(i) such personal property is incidental to real property (within
the meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of Counsel
(the cost of which shall be paid by the Master Servicer as a Servicing
Advance) to the effect that the holding of such personal property by the
Trust Fund (to the extent not allocable to a Companion Loan) will not
cause the imposition of a tax on the Upper-Tier REMIC or the Lower-Tier
REMIC under the REMIC Provisions or cause the Upper-Tier REMIC or the
Lower-Tier REMIC to fail to qualify as a REMIC at any time that any
Uncertificated Lower-Tier Interest or Certificate, or any security issued
by such a commercial mortgage securitization trust, is outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09
and Section 3.29, neither the Special Servicer nor the Master Servicer shall, on
behalf of the Trustee, obtain title to a Mortgaged Property 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/or any related Companion Holder(s), would be considered
to hold title to, to be a "mortgagee-in-possession" of, or to be an "owner" or
"operator" of such Mortgaged Property within the meaning of CERCLA or any
comparable law, unless (as evidenced by an Officer's Certificate to such effect
delivered to the Trustee) the Special Servicer has previously determined in
accordance with the Servicing Standards, based on an Environmental Assessment of
such Mortgaged Property performed by an Independent Person who regularly
conducts Environmental Assessments and performed within six months prior to any
such acquisition of title or other action, that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that taking such actions as
are necessary to bring the Mortgaged Property in compliance therewith is
reasonably likely to produce a greater recovery on a net present value
basis than not taking such actions, for such purposes taking into account
any insurance coverage provided pursuant to any environmental insurance
polices in effect and obtained on behalf of the Mortgagee with respect to
the related Mortgaged Property; 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 be required, that
taking such actions with respect to such Mortgaged Property is reasonably
likely to produce a greater recovery on a net present value basis than not
taking such actions.
The cost of any such Environmental Assessment shall be paid by the
Master Servicer as a Servicing Advance and the cost of any remedial, corrective
or other further action contemplated by clause (i) and/or clause (ii) of the
preceding sentence shall be paid by the Master Servicer as a Servicing Advance,
unless it is a Nonrecoverable Servicing Advance (in which case it shall be an
expense of the Trust Fund and may be withdrawn by the Master Servicer from the
Certificate Account); and if any such Environmental Assessment so warrants, the
Special Servicer shall (except with respect to any Companion Loan and any
Environmental Assessment ordered after the related AB Mortgage Loan has been
paid in full), at the expense of the Trust Fund, perform such additional
environmental testing as it deems necessary and prudent to determine whether the
conditions described in clauses (i) and (ii) of the preceding sentence have been
satisfied. With respect to Non-Specially Serviced Mortgage Loans, the Master
Servicer and, with respect to Specially Serviced Mortgage Loans, the Special
Servicer shall review and be familiar with the terms and conditions relating to
enforcing claims and shall monitor the dates by which any claim or action must
be taken (including delivering any notices to the insurer and using reasonable
efforts to perform any actions required under such policy) under each
environmental insurance policy in effect and obtained on behalf of the mortgagee
to receive the maximum proceeds available under such policy for the benefit of
the Certificateholders and the Trustee (as holder of the Uncertificated
Lower-Tier Interests).
(d) If (i) the environmental testing contemplated by subsection (c)
above establishes that either 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 Mortgage Loan and any related Companion
Loan(s) and (ii) there has been no breach of any of the representations and
warranties set forth in or required to be made pursuant to Section 6 of each of
the Mortgage Loan Purchase Agreements for which the applicable Mortgage Loan
Seller could be required to repurchase such Defaulted Mortgage Loan pursuant to
Section 6 of the applicable Mortgage Loan Purchase Agreement, then the Special
Servicer shall take such action as it deems to be in the best economic interest
of the Trust Fund (other than proceeding to acquire title to the Mortgaged
Property) and is hereby authorized at such time as it deems appropriate to
release such Mortgaged Property from the lien of the related Mortgage, provided,
that if such Mortgage Loan has a then outstanding principal balance of greater
than $1,000,000, then prior to the release of the related Mortgaged Property
from the lien of the related Mortgage, (i) the Special Servicer shall have
notified the Rating Agencies, the Trustee, the Paying Agent, the Master Servicer
and the Directing Certificateholder in writing of its intention to so release
such Mortgaged Property and the bases for such intention, (ii) the Paying Agent
shall have notified the Certificateholders in writing of the Special Servicer's
intention to so release such Mortgaged Property, (iii) the Holders of
Certificates entitled to a majority of the Voting Rights shall have consented to
such release within 30 days of the Paying Agent's distributing such notice
(failure to respond by the end of such 30-day period being deemed consent), and
(iv) the Special Servicer shall have received written confirmation from each
Rating Agency that such release will not cause the downgrade, withdrawal or
qualification of any of the then-current ratings of any Class of Certificates.
To the extent any fee charged by each Rating Agency in connection with rendering
such written confirmation is not paid by the related Mortgagor, such fee is to
be an expense of the Trust; provided, that the Master Servicer and the Special
Servicer, as applicable, shall use its reasonable efforts to collect such fee
from the Mortgagor to the extent permitted under the related Mortgage Loan
documents.
(e) The Special Servicer shall provide written reports and a copy of
any Environmental Assessments to the Trustee, the Paying Agent, the Directing
Certificateholder and the Master Servicer monthly regarding any actions taken by
the Special Servicer with respect to any Mortgaged Property securing a Defaulted
Mortgage Loan or defaulted Companion Loan as to which the environmental testing
contemplated in subsection (c) above has revealed that either 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 both such
conditions, repurchase of the related Mortgage Loan by the applicable Mortgage
Loan Seller or release of the lien of the related Mortgage on such Mortgaged
Property. The Paying Agent shall forward, or cause to be forwarded all such
reports to each Rating Agency and the Certificateholders upon request.
(f) The Special Servicer shall notify the Master Servicer of any
abandoned and/or foreclosed properties which require reporting to the Internal
Revenue Service and shall provide the Master Servicer with all information
regarding forgiveness of indebtedness and required to be reported with respect
to any Mortgage Loan or Companion Loan which is abandoned or foreclosed and the
Master Servicer shall report to the Internal Revenue Service and the related
Mortgagor, in the manner required by applicable law, such information and the
Master Servicer shall report, via Form 1099C (or any successor form), all
forgiveness of indebtedness to the extent such information has been provided to
the Master Servicer by the Special Servicer. Upon request, the Master Servicer
shall deliver a copy of any such report to the Trustee and the Paying Agent.
(g) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standards, the advisability of the maintenance of
an action to obtain a deficiency judgment if the state in which the Mortgaged
Property is located and the terms of the Mortgage Loan and applicable Companion
Loan permit such an action.
(h) The Special Servicer shall maintain accurate records, prepared
by one of its Servicing Officers, of each Final Recovery Determination in
respect of a Defaulted Mortgage Loan, defaulted Companion Loan or REO Property
and the basis thereof. Each Final Recovery Determination shall be evidenced by
an Officer's Certificate promptly delivered to the Trustee, the Paying Agent,
the Directing Certificateholder and the Master Servicer and in no event later
than the next succeeding P&I Advance Determination Date.
Section 3.10 Trustee to Cooperate; Release of Mortgage Files. (a)
Upon the payment in full of any Mortgage Loan, or the receipt by the Master
Servicer or the Special Servicer, as the case may be, of a notification that
payment in full shall be escrowed in a manner customary for such purposes, the
Master Servicer or Special Servicer, as the case may be, will immediately notify
the Trustee and request delivery of the related Mortgage File. Any such notice
and request shall be in the form of a Request for Release signed by a Servicing
Officer 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 Certificate Account pursuant to Section 3.04(a) or remitted to
the Master Servicer to enable such deposit, have been or will be so deposited.
Within seven Business Days (or within such shorter period as release can
reasonably be accomplished if the Master Servicer or the Special Servicer
notifies the Trustee of an exigency) of receipt of such notice and request, the
Trustee shall release, or cause any related Custodian to release, the related
Mortgage File to the Master Servicer or Special Servicer, as the case may be. No
expenses incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Certificate Account.
(b) From time to time as is appropriate for servicing or foreclosure
of any Mortgage Loan (and any related Companion Loan), the Master Servicer or
the Special Servicer shall deliver to the Trustee a Request for Release signed
by a Servicing Officer. Upon receipt of the foregoing, the Trustee shall deliver
or cause the related Custodian to deliver, the Mortgage File or any document
therein to the Master Servicer or the Special Servicer (or a designee), as the
case may be. Upon return of such Mortgage File or such document to the Trustee
or the related Custodian, or the delivery to the Trustee of a certificate of a
Servicing Officer of the Master Servicer or the Special Servicer, as the case
may be, stating that such Mortgage Loan was liquidated and that all amounts
received or to be received in connection with such liquidation which are
required to be deposited into the Certificate Account pursuant to Section
3.04(a) have been or will be so deposited, or that such Mortgage Loan has become
an REO Property, a copy of the Request for Release shall be released by the
Trustee to the Master Servicer or the Special Servicer (or a designee), as the
case may be, with the original being released upon termination of the Trust.
(c) Within seven Business Days (or within such shorter period as
delivery can reasonably be accomplished if the Special Servicer notifies the
Trustee of an exigency) of receipt thereof, the Trustee shall execute and
deliver to the Special Servicer any court pleadings, requests for trustee's sale
or other documents necessary to the foreclosure or trustee's sale in respect of
a Mortgaged Property or to any legal action brought to obtain judgment against
any Mortgagor on the Mortgage Note (including any note evidencing the related
Companion Loan) or Mortgage or to obtain a deficiency judgment, or to enforce
any other remedies or rights provided by the Mortgage Note or Mortgage or
otherwise available at law or in equity. The Special Servicer shall be
responsible for the preparation of all such documents and pleadings. When
submitted to the Trustee for signature, such documents or pleadings shall be
accompanied by 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 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.
The Special Servicer shall, (1) direct, manage, prosecute and/or
defend any action brought by a Mortgagor against the Trust and (2) represent the
interests of the Trust in any litigation relating to the rights and obligations
of the Mortgagor or Mortgagee, or the enforcement of the obligations of a
Mortgagor, under the Mortgage Loan Documents ("Trust-Related Litigation"). To
the extent the Master Servicer is named in Trust-Related Litigation, in order to
effectuate the role of the Special Servicer, the Master Servicer shall (1)
notify the Special Servicer of such Trust-Related Litigation within ten (10)
days of the Master Servicer receiving notice of such Trust-Related Litigation;
(2) provide monthly status reports to the Special Servicer regarding such
Trust-Related Litigation; and (3) act at the direction of the Special Servicer
in representing the interests of the Trust with respect to decisions and
resolutions related to such Trust-Related Litigation, including but not limited
to the selection of counsel, provided however, if there are claims against the
Master Servicer and the Master Servicer has not determined that separate counsel
is required for such claims, such counsel shall be reasonably acceptable to
Master Servicer. Notwithstanding the foregoing, nothing in this section shall
limit the Master Servicer's right to make final and binding determinations
relating to claims against GMAC Commercial Mortgage Corporation. Further,
nothing in this section shall require the Master Servicer to take or fail to
take any action which, in the Master Servicer's good faith and reasonable
judgment, may (1) result in an Adverse REMIC Event or (2) subject the Master
Servicer to material liability or materially expand the scope of the Master
Servicer's obligations under this Agreement. The Special Servicer shall have the
right at any time to direct the Master Servicer to settle any claims brought
against the Trust, including claims asserted against the Master Servicer,
provided that such settlement does not require any admission of liability or
wrongdoing on the part of the Master Servicer, the cost of such settlement is
paid by the Trust, and the Master Servicer is indemnified pursuant to Section
6.03 hereof for all costs and expenses of the Master Servicer incurred in
defending and settling the Trust-Related Litigation. The foregoing terms of this
paragraph shall not apply in the event the Special Servicer authorizes the
Master Servicer, and the Master Servicer agrees (both authority and agreement to
be in writing), to make certain decisions or control certain litigation on
behalf of the Trust.
(d) If, from time to time, pursuant to the terms of the Universal
Hotel Portfolio Intercreditor Agreement and the Universal Hotel Portfolio
Pooling Agreement, and as appropriate for enforcing the terms of the Universal
Hotel Portfolio Mortgage Loan, the Universal Hotel Portfolio Master Servicer
requests delivery to it of the original Mortgage Note for the Universal Hotel
Portfolio Mortgage Loan, then the Trustee shall release or cause the release of
such original Mortgage Note to the Universal Hotel Portfolio Master Servicer or
its designee.
Section 3.11 Servicing Compensation. (a) As compensation for its
activities hereunder, the Master Servicer shall be entitled to receive the
Servicing Fee with respect to each Mortgage Loan, each Companion Loan and REO
Loan (including Specially Serviced Mortgage Loans). As to each Mortgage Loan,
Companion Loan and REO Loan, the Servicing Fee shall accrue from time to time at
the Servicing Fee Rate and shall be computed on the basis of the Stated
Principal Balance of such Mortgage Loan, Companion Loan or REO Loan, as the case
may be, and in the same manner as interest is calculated on such Mortgage Loan,
Companion Loan or REO Loan, as the case may be, and, in connection with any
partial month interest payment, for the same period respecting which any related
interest payment due on such Mortgage Loan or Companion Loan or deemed to be due
on such REO Loan is computed. The Servicing Fee with respect to any Mortgage
Loan, Companion Loan or REO Loan shall cease to accrue if a Liquidation Event
occurs in respect thereof. The Servicing Fee shall be payable monthly, on a
loan-by-loan basis, from payments of interest on each Mortgage Loan, Companion
Loan and REO Revenues allocable as interest on each REO Loan, and as otherwise
provided by Section 3.05(a). The Master Servicer shall be entitled to recover
unpaid Servicing Fees in respect of any Mortgage Loan, Companion Loan or REO
Loan out of that portion of related payments, Insurance and Condemnation
Proceeds, Liquidation Proceeds and REO Revenues (in the case of an REO Loan)
allocable as recoveries of interest, to the extent permitted by Section 3.05(a).
The right to receive the Servicing Fee may not be transferred in whole or in
part (except in connection with a transfer of all of the Master Servicer's
duties and obligations hereunder to a successor master servicer in accordance
with the terms of this Agreement).
The Master Servicer shall be entitled to retain, and shall not be
required to deposit in the Certificate Account pursuant to Section 3.04(a),
additional servicing compensation in the form of (i) 100% of modification,
waiver and consent fees pursuant to Section 3.08(e) (other than with respect to
the Universal Hotel Portfolio Mortgage Loan), provided the consent of the
Special Servicer is not required to take such action, (ii) 100% of all
defeasance fees and 50% of all application fees received on Non-Specially
Serviced Mortgage Loans and (iii) 50% of all assumption, extension, earnout,
waiver and consent fees pursuant to Section 3.08(a) and 3.08(b) on the
Non-Specially Serviced Mortgage Loans (other than with respect to the Universal
Hotel Portfolio Mortgage Loan), to the extent that such fees are paid by the
Mortgagor and for which the Special Servicer's consent or approval is required
on the Non-Specially Serviced Mortgage Loans (other than with respect to the
Universal Hotel Portfolio Mortgage Loan) and only to the extent that all amounts
then due and payable with respect to the related Mortgage Loan have been paid.
In addition, the Master Servicer shall be entitled to retain as additional
servicing compensation (other than with respect to the Universal Hotel Portfolio
Mortgage Loan) any charges for processing Mortgagor requests, beneficiary
statements or demands, reasonable and customary consent fees, fees in connection
with defeasance, if any, and other customary charges, and amounts collected for
checks returned for insufficient funds, in each case only to the extent actually
paid by the related Mortgagor and shall not be required to deposit such amounts
in the Certificate Account or the Companion Distribution Account pursuant to
Section 3.04(a). Subject to Section 3.11(d), the Master Servicer shall also be
entitled to additional servicing compensation in the form of: (i) Penalty
Charges to the extent provided in Section 3.11(d), (ii) interest or other income
earned on deposits relating to the Trust Fund in the Certificate Account or the
Companion Distribution Account 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 the period from the prior P&I Advance Date to the P&I Advance Date related
to such Distribution Date), (iii) interest or other income earned on deposits in
the Servicing Account which are not required by applicable law or the related
Mortgage Loan to be paid to the Mortgagor and (iv) the difference, if positive,
between Prepayment Interest Excess and Prepayment Shortfalls collected on the
Mortgage Loans during the related Due Period to the extent not required to be
paid as Compensating Interest Payments, as determined on a pool-wide basis. The
Master Servicer shall be required to pay out of its own funds all expenses
incurred by it in connection with its servicing activities hereunder (including,
without limitation, payment of any amounts due and owing to any of its
Sub-Servicers and the premiums for any blanket Insurance Policy insuring against
hazard losses pursuant to Section 3.07), if and to the extent such expenses are
not payable directly out of the Certificate Account and the Master Servicer
shall not be entitled to reimbursement therefor except as expressly provided in
this Agreement.
(b) 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 REO Loan (other than the Universal
Hotel Portfolio Mortgage Loan and any successor REO Loan). As to each Specially
Serviced Mortgage Loan and REO Loan (other than the Universal Hotel Portfolio
Mortgage Loan and any successor REO Loan), the Special Servicing Fee shall
accrue from time to time at the Special Servicing Fee Rate and shall be computed
on the basis of the Stated Principal Balance of such Specially Serviced Mortgage
Loan or REO Loan, as the case may be, and in the same manner as interest is
calculated on the Specially Serviced Mortgage Loans or REO Loans, as the case
may be, and, in connection with any partial month interest payment, for the same
period respecting which any related interest payment due on such Specially
Serviced Mortgage Loan or deemed to be due on such REO Loan is computed. The
Special Servicing Fee with respect to any Specially Serviced Mortgage Loan or
REO Loan shall cease to accrue if a Liquidation Event occurs in respect thereof.
The Special Servicing Fee shall be payable monthly, on a loan-by-loan basis, in
accordance with the provisions of Section 3.05(a). The right to receive the
Special Servicing 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. The Special Servicer shall not be entitled
to any Special Servicing Fees with respect to the Universal Hotel Portfolio
Mortgage Loan.
(c) Additional servicing compensation in the form of (i) 100% of all
fees with respect to application, assumption, extension, modification, waiver,
consent, earnout and all defeasance fees, in each case, received on any
Specially Serviced Mortgage Loans (other than the Universal Hotel Portfolio
Mortgage Loan and any successor REO Loan) to the extent such fees are paid by
the Mortgagor, (ii) 50% of all application fees received on Non-Specially
Serviced Mortgage Loans and (iii) 50% of all assumption, extension, material
modification, waiver, consent and earnout fees pursuant to Section 3.08(a) and
3.08(b) or 3.20 received with respect to all Non-Specially Serviced Mortgage
Loans and for which the Special Servicer's consent or approval is required,
shall be promptly paid to the Special Servicer by the Master Servicer to the
extent such fees are paid by the Mortgagor and shall not be required to be
deposited in the Certificate Account pursuant to Section 3.04(a). The Special
Servicer shall also be entitled to additional servicing compensation in the form
of a Workout Fee with respect to each Corrected Mortgage Loan at the Workout Fee
Rate on such Mortgage Loan for so long as it remains a Corrected Mortgage Loan.
The Special Servicer shall not be entitled to any Workout Fee with respect to
the Universal Hotel Portfolio Mortgage Loan. The Workout Fee with respect to any
Corrected Mortgage Loan will cease to be payable if such loan again becomes a
Specially Serviced Mortgage Loan; provided that a new Workout Fee will become
payable if and when such Specially Serviced Mortgage Loan again becomes a
Corrected Mortgage Loan. If the Special Servicer is terminated (other than for
cause) or resigns, it shall retain the right to receive any and all Workout Fees
payable in respect of Mortgage Loans or Companion Loans that became Corrected
Mortgage Loans prior to the time of that termination or resignation except the
Workout Fees will no longer be payable if the Mortgage Loan subsequently becomes
a Specially Serviced Mortgage Loan. If the Special Servicer resigns or is
terminated (other than for cause), it will receive any Workout Fees payable on
Specially Serviced Mortgage Loans for which the resigning or terminated Special
Servicer had cured the event of default through a modification, restructuring or
workout negotiated by the Special Servicer and evidenced by a signed writing
with respect to which one (1) scheduled payment has been made, but which had not
as of the time the Special Servicer resigned or was terminated become a
Corrected Mortgage Loan solely because the Mortgagor had not had sufficient time
to make three consecutive timely Monthly Payments and which subsequently becomes
a Corrected Mortgage Loan as a result of the Mortgagor making such three
consecutive timely Monthly Payments. The successor Special Servicer will not be
entitled to any portion of such Workout Fees. The Special Servicer will not be
entitled to receive any Workout Fees after a termination for cause. A
Liquidation Fee will be payable with respect to each Specially Serviced Mortgage
Loan (other than with respect to the Universal Hotel Portfolio Whole Loan) as to
which the Special Servicer receives any Liquidation Proceeds or Insurance and
Condemnation Proceeds subject to the exceptions set forth in the definition of
Liquidation Fee (such Liquidation Fee to be paid out of such Liquidation
Proceeds, Insurance and Condemnation Proceeds). Notwithstanding anything to the
contrary described above, no Liquidation Fee will be payable based on, or out
of, Liquidation Proceeds received in connection with the repurchase of any
Mortgage Loan by a Mortgage Loan Seller for a breach of representation or
warranty or for defective or deficient Mortgage Loan documentation so long as
such repurchase is completed within the period (including any extension thereof)
provided for such repurchase in this Agreement and the Mortgage Loan Purchase
Agreement, the purchase of any Specially Serviced Mortgage Loan, within the
first 90 days after the Special Servicer's initial determination of the fair
value of such Specially Serviced Mortgage Loan, by the Majority Controlling
Class Certificateholder or the Special Servicer, the purchase of any Specially
Serviced Mortgaged Loan by the Master Servicer or the purchase of all of the
Mortgage Loans and REO Properties in connection with an optional termination of
the Trust Fund pursuant to Section 9.01. If, however, Liquidation Proceeds or
Insurance and Condemnation Proceeds are received with respect to any Corrected
Mortgage Loan and the Special Servicer is properly entitled to a Workout Fee,
such Workout Fee will be payable based on and out of the portion of such
Liquidation Proceeds and Insurance and Condemnation Proceeds that constitute
principal and/or interest on such Mortgage Loan. Notwithstanding anything herein
to the contrary, the Special Servicer shall only be entitled to receive a
Liquidation Fee or a Workout Fee, but not both, with respect to proceeds on any
Mortgage Loan. Notwithstanding the foregoing, with respect to any subordinate
Companion Loan, the Liquidation Fee, if any, will be computed as provided in the
related Intercreditor Agreement. Subject to Section 3.11(d), the Special
Servicer will also be entitled to additional fees in the form of Penalty Charges
to the extent provided in subsection (d). The Special Servicer shall be required
to pay out of its own funds all expenses incurred by it in connection with its
servicing activities hereunder (including, without limitation, payment of any
amounts, other than management fees in respect of REO Properties, due and owing
to any of its Sub-Servicers and the premiums for any blanket Insurance Policy
obtained by it insuring against hazard losses pursuant to Section 3.07), if and
to the extent such expenses are not expressly payable directly out of the
Certificate Account or the REO Account, and the Special Servicer shall not be
entitled to reimbursement therefor except as expressly provided in this
Agreement.
(d) In determining the compensation of the Master Servicer or
Special Servicer, as applicable, with respect to Penalty Charges, on any
Distribution Date, the aggregate Penalty Charges collected on any Mortgage Loan
since the prior Distribution Date shall be applied (in such order) to reimburse
(i) the Master Servicer or the Trustee for interest on Advances on such Mortgage
Loan (and, in connection with the Universal Hotel Portfolio Mortgage Loan, the
Universal Hotel Portfolio Master Servicer, the Universal Hotel Portfolio Special
Servicer, the Universal Hotel Portfolio Paying Agent or the Universal Hotel
Portfolio Trustee for interest on the Servicing Advances made by any such party
with respect to the Universal Hotel Portfolio Whole Loan pursuant to the
Universal Hotel Portfolio Pooling Agreement, to the extent so provided in the
Universal Hotel Portfolio Intercreditor Agreement), due on such Distribution
Date, (ii) the Trust Fund for all interest on Advances previously paid to the
Master Servicer or the Trustee pursuant to Section 3.05(a)(vi) hereof (and, in
connection with the Universal Hotel Portfolio Mortgage Loan, the Universal Hotel
Portfolio Trust for all interest on Servicing Advances reimbursed by the
Universal Hotel Portfolio Trust to any party under the Universal Hotel Portfolio
Pooling Agreement, which resulted in an additional trust fund expense for the
Universal Hotel Portfolio Trust, to the extent so provided in the Universal
Hotel Portfolio Intercreditor Agreement) with respect to such Mortgage Loan and
(iii) the Trust Fund for costs of all additional Trust Fund expenses (including
Special Servicing Fees, Workout Fees and Liquidation Fees), including without
limitation, inspections by the Special Servicer and all unpaid Advances incurred
since the Closing Date with respect to such Mortgage Loan; Penalty Charges
(other than with respect to the Universal Hotel Portfolio Mortgage Loan, which
shall be payable as additional servicing compensation under the Universal Hotel
Portfolio Pooling Agreement) remaining thereafter shall be distributed to the
Master Servicer, if and to the extent collected while the Mortgage Loan was a
Non-Specially Serviced Mortgage Loan and to the Special Servicer if and to the
extent actually collected on such Mortgage Loan during the period such Mortgage
Loan was a Specially Serviced Mortgage Loan.
Section 3.12 Inspections; Collection of Financial Statements. (a)
The Master Servicer shall perform (at its own expense), or shall cause to be
performed (at its own expense), a physical inspection of each Mortgaged Property
(other than Universal Hotel Portfolio Mortgaged Property) securing a Mortgage
Note with a stated Principal Balance of (i) $2,000,000 or more at least once
every 12 months and (ii) less than $2,000,000 at least once every 24 months, in
each case commencing in the calendar year 2006 (and each Mortgaged Property
shall be inspected on or prior to August 2007); provided, however, that if a
physical inspection has been performed by the Special Servicer in the previous
12 months and the Master Servicer has no knowledge of a material adverse change
in the Mortgaged Property since such physical inspection, the Master Servicer
will not be required to perform or cause to be performed, such physical
inspection; provided further, that if any scheduled payment becomes more than 60
days delinquent on the related Mortgage Loan, the Special Servicer shall inspect
or cause to be inspected the related Mortgaged Property as soon as practicable
after such 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 such inspection by the Special Servicer shall be an
expense of the Trust Fund, and to the extent not paid by the related mortgagee
reimbursed first from Penalty Charges actually received from the related
Mortgagor and then from the Certificate Account pursuant to Section 3.05(a)(ii).
The Special Servicer or the Master Servicer, as applicable, shall prepare or
cause to be prepared a written report of each such inspection detailing the
condition of the Mortgaged Property and specifying the existence of (i) any
vacancy in the Mortgaged Property that the preparer of such report deems
material, (ii) any sale, transfer or abandonment of the Mortgaged Property of
which it has knowledge, (iii) any adverse change in the condition of the
Mortgaged Property that the preparer of such report deems material, (iv) any
visible material waste committed on the Mortgaged Property and (v) photographs
of each inspected Mortgaged Property. The Special Servicer and the Master
Servicer shall deliver a copy of each such report prepared by the Special
Servicer and the Master Servicer, respectively, to the other, to the Directing
Certificateholder and, upon request, to the Trustee, the Paying Agent and the
Rating Agencies within five (5) Business Days after request (or if such request
is received before such report is completed, within five (5) Business Days after
completion of such report). The Paying Agent shall deliver a copy of each such
report to the Controlling Class Certificateholder upon request and to each
Holder of a Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class
M, Class N, Class O and Class NR Certificate, upon request (which such request
may state that such items be delivered until further notice).
(b) The Special Servicer, in the case of any Specially Serviced
Mortgage Loans, and the Master Servicer, in the case of any Non-Specially
Serviced Mortgage Loans, shall make reasonable efforts to collect promptly from
each Mortgagor annual operating statements and rent rolls of the related
Mortgaged Property, financial statements of such Mortgagor and any other reports
required to be delivered under the terms of the Mortgage Loans (and each
Companion Loan), if delivery of such items is required pursuant to the terms of
the related Mortgage.
(c) The Special Servicer, in the case of any Specially Serviced
Mortgage Loan, and the Master Servicer, in the case of any Non-Specially
Serviced Mortgage Loan shall make reasonable efforts to collect promptly from
each related Mortgagor quarterly and annual operating statements, budgets and
rent rolls of the related Mortgaged Property, and the quarterly and annual
financial statements of such Mortgagor, whether or not delivery of such items is
required pursuant to the terms of the related Mortgage. The Master Servicer
shall not be required to request such statements more than once if the related
Mortgagor is not required to deliver such statements pursuant to the terms of
the Mortgage Loan documents. In addition, the Special Servicer shall cause
quarterly and annual operating statements, budgets and rent rolls to be
regularly prepared in respect of each REO Property and shall collect all such
items promptly following their preparation. The Special Servicer shall deliver
all such items to the Master Servicer within five (5) days of receipt and the
Master Servicer and the Special Servicer each shall deliver copies of all the
foregoing items so collected thereby to the Trustee, the Paying Agent, the
Directing Certificateholder and, upon request, to the Depositor and each other,
in each case within 60 days of its receipt thereof, but in no event, in the case
of annual statements, later than June 30 of each year commencing June 30, 2006.
The Paying Agent shall, upon request, deliver copies (in hard copy, electronic
format or make available on its Internet website) of the foregoing items to the
Underwriters, the Trustee, the Rating Agencies, the Controlling Class
Certificateholders, the Mortgage Loan Sellers or, to the extent the Certificate
Registrar has confirmed the Ownership Interest in Certificates held thereby, any
Certificate Owner, a copy (or image in suitable electronic media) of each such
report prepared by the Master Servicer or the Special Servicer.
Within 45 days after receipt by the Master Servicer, with respect to
Non-Specially Serviced Mortgage Loans, or the Special Servicer with respect to
Specially Serviced Mortgage Loans of any annual operating statements or rent
rolls with respect to any Mortgaged Property (other than the Universal Hotel
Portfolio Mortgaged Property) or REO Property, or if such date would be after
June 30 of any year, then within 30 days after receipt, the Master Servicer
shall, based upon such operating statements or rent rolls received, prepare (or,
if previously prepared, update) the analysis of operations and the CMSA NOI
Adjustment Worksheet and the CMSA Operating Statement Analysis Report. Upon the
occurrence and continuation of a Servicing Transfer Event, the Master Servicer
shall provide the Special Servicer with all prior CMSA Operating Statement
Analysis Reports and CMSA NOI Adjustment Worksheets for the related Mortgage
Loan (including underwritten figures), and the Special Servicer's obligations
hereunder shall be subject to its having received all such reports. The Master
Servicer and Special Servicer shall forward to the other and the Directing
Certificateholder electronically monthly all operating statements and rent rolls
received from any Mortgagor from the prior month. All CMSA Operating Statement
Analysis Reports and CMSA NOI Adjustment Worksheets shall be maintained by the
Master Servicer with respect to each Mortgaged Property (other than the
Universal Hotel Portfolio Mortgaged Property) and REO Property, and the Master
Servicer shall forward copies (in hard copy, electronic format or make available
on its Internet website) thereof and the related operating statements or rent
rolls (in each case, promptly following the initial preparation and each
material revision thereof) to the Paying Agent (in electronic format only), the
Directing Certificateholder (and (i) with respect to the Universal Hotel
Portfolio Whole Loan, the Universal Hotel Portfolio Representative, and (ii)
with respect to a Companion Loan, to the related Companion Holder) and, upon
written request, the Special Servicer. The Paying Agent shall, upon request and
to the extent such items have been delivered to the Paying Agent by the Master
Servicer, deliver to the Underwriters, the Rating Agencies, the Mortgage Loan
Sellers, any Certificateholder or, to the extent the Certificate Registrar has
confirmed the Ownership Interest in the Certificates held thereby, any
Certificate Owner, a copy of such CMSA Operating Statement Analysis Report (or
update thereof) and CMSA NOI Adjustment Worksheet (or update thereof), upon
written request, and the related operating statement or rent rolls. The Master
Servicer shall maintain a CMSA Operating Statement Analysis Report and a CMSA
NOI Adjustment Worksheet with respect to each Mortgaged Property and REO
Property.
(d) At or before 12:00 p.m. (New York City time) on each
Determination Date, the Special Servicer shall prepare and deliver or cause to
be delivered to the Master Servicer the CMSA Special Servicer Loan File with
respect to the Specially Serviced Mortgage Loans and any REO Properties,
providing the information required of the Special Servicer in an electronic
format, reasonably acceptable to the Master Servicer as of such Determination
Date, which CMSA Special Servicer Loan File shall include data, to enable Master
Servicer to produce the following CMSA Supplemental Reports: (i) a CMSA
Delinquent Loan Status Report, (ii) a CMSA Historical Liquidation Report, (iii)
a CMSA Historical Loan Modification and Corrected Mortgage Loan Report, (iv) a
CMSA REO Status Report, (v) a CMSA Comparative Financial Status Report and (vi)
a CMSA NOI Adjustment Worksheet and a CMSA Operating Statement Analysis Report.
(e) Not later than 1:00 p.m. (New York City time) on the P&I Advance
Date, beginning in October 2005, the Master Servicer shall prepare (if and to
the extent necessary) and deliver or cause to be delivered in electronic format
to the Paying Agent the following reports and data files: (i) to the extent the
Master Servicer has received the CMSA Special Servicer Loan File at the time
required, the most recent CMSA Delinquent Loan Status Report, CMSA Historical
Liquidation Report, CMSA Historical Loan Modification and Corrected Mortgage
Loan Report, and CMSA REO Status Report, (ii) CMSA Loan Setup File (with respect
to the first Distribution Date), (iii) the most recent CMSA Property File, and
CMSA Comparative Financial Status Report (in each case incorporating, to the
extent the Master Servicer has received the CMSA Special Servicer Loan File, the
data required to be included in the CMSA Special Servicer Loan File pursuant to
Section 3.12(d) by the Special Servicer and Master Servicer), (iv) a CMSA
Servicer Watch List with information that is current as of such Determination
Date, (v) CMSA Financial File, (vi) CMSA Loan Level Reserve LOC Report, (vii)
the Realized Loss Report and (viii) the CMSA Advance Recovery Report. Not later
than 2:00 p.m. (New York City time) two (2) Business Days prior to the
Distribution Date, the Master Servicer shall deliver or cause to be delivered to
the Paying Agent via electronic format the CMSA Loan Periodic Update File. In no
event shall any report described in this subsection be required to reflect
information that has not been collected by or delivered to the Master Servicer,
or any payments or collections not received by the Master Servicer, as of the
Business Day prior to the Business Day on which the report is due.
(f) The Special Servicer shall deliver to the Master Servicer the
reports required of the Special Servicer pursuant to Section 3.12(c) and Section
3.12(d), and the Master Servicer shall deliver to the Paying Agent the reports
and data files set forth in Section 3.12(e). The Master Servicer may, absent
manifest error, conclusively rely on the reports and/or data to be provided by
the Special Servicer pursuant to Section 3.12(c) and Section 3.12(d). The Paying
Agent may, absent manifest error, conclusively rely on the reports and/or data
to be provided by the Master Servicer pursuant to Section 3.12(e). In the case
of information or reports to be furnished by the Master Servicer to the Paying
Agent pursuant to Section 3.12(e), to the extent that such information or
reports are, in turn, based on information or reports to be provided by the
Special Servicer pursuant to Section 3.12(c) or Section 3.12(d) and to the
extent that such reports are to be prepared and delivered by the Special
Servicer pursuant to Section 3.12(c) or Section 3.12(d), the Master Servicer
shall have no obligation to provide such information or reports to the Paying
Agent until it has received the requisite 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 3.12(e) caused by the
Special Servicer's failure to timely provide any information or report required
under Section 3.12(c) or Section 3.12(d) of this Agreement.
(g) Notwithstanding the foregoing, however, the failure of the
Master Servicer or Special Servicer to disclose any information otherwise
required to be disclosed by this Section 3.12 shall not constitute a breach of
this Section 3.12 to the extent the Master Servicer or Special Servicer so fails
because such disclosure, in the reasonable belief of the Master Servicer or the
Special Servicer, as the case may be, would violate any applicable law or any
provision of a Mortgage Loan document prohibiting disclosure of information with
respect to the Mortgage Loans or Mortgaged Properties. The Master Servicer and
Special Servicer may disclose any such information or any additional information
to any Person so long as such disclosure is consistent with applicable law and
the Servicing Standards. The Master Servicer or the Special Servicer may affix
to any information provided by it any disclaimer it deems appropriate in its
reasonable discretion (without suggesting liability on the part of any other
party hereto).
(h) Unless otherwise specifically stated herein, if the Master
Servicer or the Special Servicer is required to deliver any statement, report or
information under any provisions of this Agreement, the Master Servicer or the
Special Servicer, as the case may be, may satisfy such obligation by (x)
physically delivering a paper copy of such statement, report or information, (y)
delivering such statement, report or information in a commonly used electronic
format or (z) except with respect to information to be provided to the Paying
Agent, the Directing Certificateholder or any Companion Holder making such
statement, report or information available on the Master Servicer's or the
Special Servicer's Internet website, unless this Agreement expressly specifies a
particular method of delivery.
Notwithstanding the foregoing, the Master Servicer and the Special
Servicer shall deliver any statements, reports or other information to the
Paying Agent in an electronic format mutually agreeable to the Paying Agent and
the Master Servicer, or the Special Servicer as the case may be. The Master
Servicer or the Special Servicer may physically deliver a paper copy of any such
statement, report or information as a temporary measure due to system problems.
Section 3.13 Annual Statement as to Compliance. Each of the Master
Servicer and the Special Servicer will deliver to the Trustee, the Paying Agent
and the Rating Agencies, with a copy to the Depositor, on or before March 15th
of each year, beginning March 15, 2006, an Officer's Certificate stating, as to
each 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
and 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
in all material respects its obligations under this Agreement throughout such
year, or, if there has been a material 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 qualification, or challenging the
status of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC from the
Internal Revenue Service or any other governmental agency or body or, if it has
received any such notice, specifying the details thereof. A copy of such
Officer's Certificate may be obtained by Certificateholders upon written request
to the Paying Agent pursuant to Section 8.12 hereof. However, to the extent the
Commission promulgates new rules with respect to this annual statement of
compliance that are required to be implemented with respect to this Agreement,
the form of the compliance statement required by this Section 3.13 shall conform
to the requirements of the Commission. Promptly after receipt of such Officer's
Certificates, the Depositor shall review such Officer's Certificates and, if
applicable, consult with the Master Servicer or the Special Servicer, as
applicable, as to the nature of any defaults by the Master Servicer or the
Special Servicer, as applicable, in the fulfillment of any of the Master
Servicer's or the Special Servicer's obligations.
Section 3.14 Reports by Independent Public Accountants. Each of the
Master Servicer and the Special Servicer at their own expense shall cause a
nationally recognized firm of independent certified public accountants to
furnish to the Trustee, the Paying Agent and each Rating Agency, with a copy to
the Depositor on or before March 15th of each year, commencing with March 15,
2006, a report stating that (i) it has obtained from the Master Servicer or the
Special Servicer, as the case may be, a letter of representation regarding
certain matters from the management of the Master Servicer or the Special
Servicer, as the case may be, which includes an assertion that the Master
Servicer or the Special Servicer, as the case may be, 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 Master Servicer's or the Special
Servicer's, as the case may be, 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 assertion is
fairly stated in all material respects, subject to such exceptions and other
qualifications that, in the opinion of such firm, such standards require it to
report. In rendering its report such firm may rely, as to the 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 during the previous 12 months on the basis of examinations
conducted in accordance with the same standards with respect to those
Sub-Servicers. However, to the extent the Commission promulgates new rules with
respect to these reports by firms of independent certified public accountants
that are required to be implemented with respect to this Agreement, the form of
these reports required by this Section 3.14 shall conform to the requirements of
the Commission. Promptly after receipt of such reports, the Depositor shall
review such reports and, if applicable, consult with the Master Servicer or the
Special Servicer, as applicable, as to the nature of any defaults by the Master
Servicer or the Special Servicer, as applicable, in the fulfillment of any of
the Master Servicer's or the Special Servicer's obligations.
Section 3.15 Access to Certain Information. Each of the Master
Servicer and the Special Servicer shall provide or cause to be provided to any
Certificateholder or Certificate Owner that is, or is affiliated with, a
federally insured financial institution, the Trustee, the Paying Agent, the
Depositor, each Mortgage Loan Seller, each Rating Agency, the Directing
Certificateholder, any Companion Holder, the Master Servicer, or to the Special
Servicer, as applicable, and to the OTS, the FDIC, the Federal Reserve Board and
the supervisory agents and examiners of such boards and such corporations, and
any other federal or state banking or insurance regulatory authority that may
exercise authority over any Certificateholder, and to each Holder of a Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class O or Class NR
Certificate, and to each Companion Holder (solely with respect to the related AB
Mortgage Loan) access to any documentation or information regarding the Mortgage
Loans and related Companion Loans and the Trust Fund within its control which
may be required by this Agreement or by applicable law. At the election of the
Master Servicer or the Special Servicer, such access may be afforded to such
Person identified above by the delivery of copies of information as requested by
such Person and the Master Servicer or the Special Servicer shall be permitted
to require payment (other than from the Directing Certificateholder and the
Trustee) of a sum sufficient to cover the reasonable out-of-pocket costs
incurred by it in making such copies. Such access shall (except as described in
the preceding sentence) be afforded without charge but 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;
provided, however, that Certificateholders and Certificate Owners shall be
required to pay their own photocopying costs and execute a reasonable and
customary confidentiality agreement with respect to such information. The
failure of the Master Servicer or the Special Servicer to provide access as
provided in this Section 3.15 as a result of a confidentiality obligation shall
not constitute a breach of this Section 3.15; provided, that nothing in this
paragraph shall provide a basis for not providing to the Directing
Certificateholder any information specifically required to be delivered to it
under the terms of this Agreement. The Master Servicer and the Special Servicer
may each deny any of the foregoing persons access to confidential information or
any intellectual property which the Master Servicer or the Special Servicer is
restricted by license or contract from disclosing. In connection with providing
access to information pursuant to this Section 3.15 to parties other than the
Trustee or the Paying Agent, the Master Servicer and the Special Servicer may
each (i) affix a reasonable disclaimer to any information provided by it for
which it is not the original source (without suggesting liability on the part of
any other party hereto); (ii) affix to any information provided by it a
reasonable statement regarding securities law restrictions on such information
and/or condition access to information on the execution of a reasonable
confidentiality agreement; (iii) withhold access to confidential information or
any intellectual property; and (iv) withhold access to items of information
contained in the Servicing File for any Mortgage Loan if the disclosure of such
items is prohibited by applicable law or the provisions of any related Mortgage
Loan documents or would constitute a waiver of the attorney-client privilege.
Notwithstanding any provision of this Agreement to the contrary, the failure of
the Master Servicer or the Special Servicer to disclose any information
otherwise required to be disclosed by it pursuant to this Agreement shall not
constitute a breach of this Agreement to the extent that the Master Servicer or
the Special Servicer, as the case may be, determines, in its reasonable good
faith judgment consistent with the Servicing Standards, that such disclosure
would violate applicable law or any provision of a Mortgage Loan document or
Companion Loan document prohibiting disclosure of information with respect to
the Mortgage Loans or Companion Loans or the Mortgaged Properties, constitute a
waiver of the attorney-client privilege on behalf of the Trust or the Trust Fund
or otherwise materially harm the Trust or the Trust Fund.
Section 3.16 Title to REO Property; REO Account. (a) If title to any
REO Property is acquired, the deed or certificate of sale shall be issued to the
Trustee or a nominee thereof on behalf of the Certificateholders and, if
applicable, on behalf of the Companion Holders. The Special Servicer, on behalf
of the Trust Fund shall sell any REO Property prior to the close of the third
calendar year following the year in which the Trust Fund acquires ownership of
such REO Property, within the meaning of Treasury Regulations Section
1.856-6(b)(1), for purposes of Section 860G(a)(8) of the Code, unless the
Special Servicer either (i) is granted an extension of time (an "REO Extension")
by the Internal Revenue Service to sell such REO Property or (ii) obtains for
the Trustee, the Paying Agent and the Master Servicer an Opinion of Counsel,
addressed to the Trustee, the Paying Agent and the Master Servicer, to the
effect that the holding by the Trust Fund of such REO Property subsequent to the
close of the third calendar year following the year in which such acquisition
occurred will not cause the imposition of a tax on the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Upper-Tier REMIC or the Lower-Tier REMIC to fail
to qualify as a REMIC at any time that any Uncertificated Lower-Tier Interest or
Certificate is 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 such REO Property within such longer
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
being granted 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, shall be an expense of the Trust
Fund payable out of the Certificate Account pursuant to Section 3.05(a).
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property separate and apart
from its own funds and general assets. If an REO Acquisition shall occur, the
Special Servicer shall establish and maintain one or more REO Accounts, held on
behalf of the Trustee in trust for the benefit of the Certificateholders and, if
applicable, on behalf of the Companion Holder(s), as their interest shall
appear, and the Trustee (as holder of the Uncertificated Lower-Tier Interests),
for the retention of revenues and other proceeds derived from each REO Property.
The REO Account shall be an Eligible Account. The Special Servicer shall
deposit, or cause to be deposited, in the REO Account, within 1 Business Day
after receipt, all REO Revenues, Insurance and Condemnation Proceeds and
Liquidation Proceeds received in respect of an REO Property. Funds in the REO
Account may be invested in Permitted Investments in accordance with Section
3.06. The Special Servicer shall give notice to the Trustee and the Master
Servicer of the location of the REO Account when first established and of the
new location of the REO Account prior to any change thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, insuring, leasing, maintenance
and disposition of any REO Property, but only to the extent of amounts on
deposit in the REO Account relating to such REO Property. On or prior to each
Determination Date, the Special Servicer shall withdraw from the REO Account and
remit to the Master Servicer, which shall deposit into the Certificate Account
(or such subaccount of the Certificate Account for each Companion Loan, as
applicable), the aggregate of all amounts received in respect of each REO
Property during the most recently ended Due Period, net of (i) any withdrawals
made out of such amounts pursuant to the preceding sentence and (ii) Net
Investment Earnings on amounts on deposit in the REO Account; provided, however,
that the Special Servicer may retain in such REO Account, in accordance with the
Servicing Standards, such portion of such balance as may be necessary to
maintain a reasonable reserve for repairs, replacements, leasing, management and
tenant improvements and other related expenses for the related REO Property. In
addition, on or prior to each Determination Date, the Special Servicer shall
provide the Master Servicer with a written accounting of amounts remitted to the
Master Servicer for deposit in the Certificate Account, as applicable, on such
date. The Master Servicer shall apply all such amounts as instructed by the
Special Servicer on the Determination Date for the related Distribution Date.
(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, the REO Account pursuant to Section 3.16(b) or (c).
Section 3.17 Management of REO Property. (i) If title to any REO
Property is acquired, the Special Servicer shall manage, consent, protect,
operate and lease such REO Property for the benefit of the Certificateholders
and the Companion Holders, as applicable, and the Trustee (as holder of the
Uncertificated Lower-Tier Interests) solely for the purpose of its timely
disposition and sale in a manner that does not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code or result in the receipt by the Trust Fund of any "income from
non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code.
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 in the
best interests of and for the benefit of the Certificateholders (and, in the
case of each Loan Pair, the related Companion Holder(s)) and the Trustee (as
holder of the Uncertificated Lower-Tier Interests) all as a collective whole (as
determined by the Special Servicer in its reasonable judgment in accordance with
the Servicing Standards and any related Intercreditor Agreements). Subject to
this Section 3.17, the Special Servicer may allow the Trust Fund to earn "net
income from foreclosure property" within the meaning of Section 860G(d) of the
Code if it determines that earning such income is in the best interests of
Certificateholders and, if applicable, any related Companion Holder(s) on a net
after-tax basis as compared with net leasing such REO Property or operating such
REO Property on a different basis. In connection therewith, the Special Servicer
shall deposit or cause to be deposited on a daily basis (and in no event later
than 1 Business Day following receipt of such funds) in the applicable REO
Account all revenues received by it with respect to each REO Property and the
related REO Loan, and shall withdraw from the REO Account, to the extent of
amounts on deposit therein with respect to such REO Property, funds necessary
for the proper operation, management, leasing and maintenance of such REO
Property, including, without limitation:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property, if
applicable; and
(iv) all costs and expenses necessary to maintain and lease such REO
Property.
To the extent that amounts on deposit in the REO Account in respect
of any REO Property are insufficient for the purposes set forth in clauses (i) -
(iv) above with respect to such REO Property, the Master Servicer (subject to
receiving notice from the Special Servicer in accordance with the procedures set
forth elsewhere in this Agreement) shall advance from its own funds such amount
as is necessary for such purposes unless (as evidenced by an Officer's
Certificate delivered to the Trustee, the Depositor, the Paying Agent and the
Directing Certificateholder) such advances would, if made, constitute
Nonrecoverable Servicing Advances.
(b) Without limiting the generality of the foregoing, the Special
Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any New
Lease with respect to any REO Property, if the New Lease by its terms will
give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease
other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on any REO Property,
other than the completion of a building or other improvement thereon, and
then only if more than 10% of the construction of such building or other
improvement was completed before default on the related Mortgage Loan
became imminent, all within the meaning of Section 856(e)(4)(B) of the
Code; or
(iv) Directly Operate, or allow any other Person, other than an
Independent Contractor, to Directly Operate, any REO Property on any date
more than 90 days after its acquisition date;
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 as a Servicing
Advance) to the effect that such action will not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code at any time that it is held for the benefit of the Trust Fund, in which
case the Special Servicer may take such actions as are specified in such Opinion
of Counsel.
(c) The Special Servicer shall contract with any Independent
Contractor for the operation and management of any REO Property within 90 days
of the acquisition date thereof, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be an
expense of the Trust Fund) shall be reasonable and customary in light of
the nature and locality of the Mortgaged Property;
(iii) any such contract shall require, or shall be administered to
require, that the Independent Contractor (A) pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including, without limitation, those listed in subsection (a)
hereof, and (B) 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(c) 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 any
such REO Property; and
(v) the Special Servicer shall be obligated to manage and supervise
such Independent Contractor in accordance with the Servicing Standards.
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 hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification.
(d) When and as necessary, the Special Servicer shall send to the
Trustee, the Paying Agent and the Master Servicer a statement prepared by the
Special Servicer setting forth the amount of net income or net loss, as
determined for federal income tax purposes, resulting from the operation and
management of a trade or business on, the furnishing or rendering of a
non-customary service to the tenants of, or the receipt of any other amount not
constituting Rents from Real Property in respect of, any REO Property in
accordance with Sections 3.17(a) and 3.17(b).
Section 3.18 Sale of Defaulted Mortgage Loans and REO Properties.
(a) (i) Within thirty (30) days after a Mortgage Loan has become a
Specially Serviced Mortgage Loan with respect to any Defaulted Mortgage Loan,
the Special Servicer shall order an Appraisal (but shall not be required to be
received) and within thirty (30) days of receipt of the Appraisal shall
determine the fair value of such Defaulted Mortgage Loan in accordance with the
Servicing Standards; provided, however, that such determination shall be made
without taking into account any effect the restrictions on the sale of such
Mortgage Loan contained herein may have on the value of such Defaulted Mortgage
Loan; provided further, that if the Special Servicer is then in the process of
obtaining an Appraisal with respect to the related Mortgaged Property, the
Special Servicer shall make its fair value determination as soon as reasonably
practicable (but in any event within thirty (30) days) after its receipt of such
an Appraisal. The Special Servicer may, from time to time, adjust its fair value
determination based upon changed circumstances, new information and other
relevant factors, in each instance in accordance with a review of such
circumstances and new information in accordance with the Servicing Standards,
conducted not less often than every 90 days. The Special Servicer shall notify
the Trustee, the Master Servicer, the Paying Agent and the Certificateholder
that owns the largest aggregate Certificate Balance of the Controlling Class
(the "Controlling Class Option Holder"), promptly upon its making a fair value
determination and any subsequent adjustment thereto. The Special Servicer shall
also deliver to the Master Servicer, the Rating Agencies and the Controlling
Class Option Holder (to the extent such parties have not already received), the
most recent Appraisal of the related Mortgaged Property then in the Special
Servicer's possession, together with such other third-party reports and other
information then in the Special Servicer's possession that the Special Servicer
reasonably believes to be relevant to the fair value determination with respect
to such Mortgage Loan (such materials are, collectively, the "Determination
Information"). If the Special Servicer will not be determining whether the
Option Price represents fair value of the Defaulted Mortgage Loan, pursuant to
the second to last paragraph of Section 3.18(a)(iv), the Special Servicer shall
also deliver the Determination Information to the Trustee.
In determining the fair value of any Defaulted Mortgage Loan, the
Special Servicer shall take into account, among other factors, the period and
amount of the delinquency on such Mortgage Loan, the occupancy level and
physical condition of the related Mortgaged Property, the state of the local
economy in the area where the Mortgaged Property is located, and the time and
expense associated with a purchaser's foreclosing on the related Mortgaged
Property. In addition, the Special Servicer shall refer to the Determination
Information and all other relevant information obtained by it or otherwise
contained in the Mortgage File; provided, that the Special Servicer shall take
account of any change in circumstances regarding the related Mortgaged Property
known to the Special Servicer that has occurred subsequent to, and that would,
in the Special Servicer's reasonable judgment, materially affect the value of
the related Mortgaged Property reflected in, the most recent related Appraisal.
Furthermore, the Special Servicer shall consider all available objective
third-party information obtained from generally available sources, as well as
information obtained from vendors providing real estate services to the Special
Servicer, concerning the market for distressed real estate loans and the real
estate market for the subject property type in the area where the related
Mortgaged Property is located. The Special Servicer may conclusively rely on the
opinion and reports of independent third parties in making such determination.
(ii) Subject to the terms and conditions of clauses (d) and (e) of
this Section 3.18, at the time a Mortgage Loan becomes a Defaulted
Mortgage Loan, the Special Servicer and Controlling Class Option Holder
(each, together with their assignees, an "Option Holder") will have an
assignable option (the "Purchase Option") to purchase such Defaulted
Mortgage Loan from the Trust Fund at a price (the "Option Price") equal to
(A) if the Special Servicer has not yet determined the fair value of such
Defaulted Mortgage Loan, the sum of (1) the Stated Principal Balance
thereof, together with all accrued and unpaid interest thereon at the
Mortgage Rate, (2) any related Yield Maintenance Charge or prepayment
premium then payable (except if the Purchase Option is exercised by the
Controlling Class Option Holder), (3) all related Advances for which the
Trust Fund or the related Master Servicer has not been reimbursed,
together with all accrued and unpaid interest thereon at the Reimbursement
Rate to the extent not included in (1) above, and (4) all accrued Special
Servicing Fees and additional Trust Fund expenses allocable to such
Defaulted Mortgage Loan whether recovered or unrecovered from the related
Mortgagor or (B) if the Special Servicer has determined the fair value of
such Defaulted Mortgage Loan pursuant to clause (i) above, an amount at
least equal to such fair value. Notwithstanding the foregoing, for a
period of sixty (60) days after it receives notice of the Special
Servicer's fair value determination (the "Controlling Class
Certificateholder's Option Period"), only the Purchase Option held by the
Controlling Class Option Holder may be exercised.
Any Option Holder may sell, transfer, assign or otherwise convey its
Purchase Option with respect to any Defaulted Mortgage Loan to any party
at any time after the related Mortgage Loan becomes a Defaulted Mortgage
Loan. The transferor of any Purchase Option shall notify the Trustee, the
Paying Agent and the Master Servicer of such transfer and such notice
shall include the transferee's name, address, telephone number, facsimile
number and appropriate contact person(s) and shall be acknowledged in
writing by the transferee.
Each Option Holder's Purchase Option with respect to any Defaulted
Mortgage Loan, if not exercised, will automatically terminate (A) once the
related Defaulted Mortgage Loan is no longer a Defaulted Mortgage Loan;
provided, however, that if such Mortgage Loan subsequently becomes a
Defaulted Mortgage Loan, the related Purchase Option shall again be
exercisable, (B) upon the acquisition, by or on behalf of the Trust Fund,
of title to the related Mortgaged Property through foreclosure or deed in
lieu of foreclosure, (C) upon the modification or pay-off, in full or at a
discount, of such Defaulted Mortgage Loan in connection with a workout or
(D) subject to the Master Servicer's determination set forth in clause
(iv) below, upon another Option Holder's exercise of its Purchase Option
with respect to the related Mortgage Loan becoming effective pursuant to
clause (iii) below.
(iii) Upon receipt of notice from the Special Servicer indicating
that a Mortgage Loan has become a Defaulted Mortgage Loan, and after the
expiration of the Controlling Class Certificateholder's Option Period,
each Option Holder (whether the original grantee of such option or any
subsequent transferee) may exercise its Purchase Option by providing the
Master Servicer, the Paying Agent and the Trustee written notice thereof
(the "Purchase Option Notice"), in the form of Exhibit J, which notice
shall identify the Person that, on its own or through an Affiliate, will
acquire the related Mortgage Loan upon closing and shall specify a cash
exercise price at least equal to the Option Price. The Purchase Option
Notice shall be delivered in the manner specified in Section 11.05.
Immediately upon receipt of such Purchase Option Notice, the Special
Servicer shall notify the remaining Option Holders that a Purchase Option
has been exercised. Within ten (10) days thereafter, each remaining Option
Holder may submit to the Special Servicer a Purchase Option Notice for the
related Defaulted Mortgage Loan. Upon the expiration of such ten (10) day
period, or such sooner time as all remaining Option Holders have submitted
Purchase Option Notices, the Special Servicer shall notify the Option
Holder whose Purchase Option Notice included the highest exercise price
that the exercise of its Purchase Option is effective. The Special
Servicer shall also notify the Trustee of such effective exercise. In the
event that more than one Option Holder exercises its Purchase Option at
the same price, the Purchase Option Notice first received by the Special
Servicer shall be effective. The exercise of any Purchase Option pursuant
to this clause (iii) shall be irrevocable; provided that the assignor of
the Purchase Option shall have no liability to the Trust or any other
party hereto for the failure of its third party assignee to close the sale
of the Defaulted Mortgage Loan after its exercise of the option, and upon
such failure, the Purchase Option shall revert to the Option Holder as
provided herein as if the Purchase Option had not been exercised, and the
Special Servicer shall pursue against such assignee whatever remedies it
may have against the assignee.
(iv) If the Special Servicer or any Controlling Class Option Holder,
or any of their respective Affiliates, is identified in the Purchase
Option Notice as the Person expected to acquire the related Mortgage Loan,
and the Option Price is based upon the Special Servicer's fair value
determination, the Master Servicer shall determine as soon as reasonably
practicable (and, in any event, within thirty (30) days) after the Master
Servicer has received the written notice and the Determination Information
to be provided to the Master Servicer by the Special Servicer under
Section 3.18(a)(i), whether the Option Price represents fair value for the
Defaulted Mortgage Loan; provided, that, if the Special Servicer is then
in the process of obtaining a new Appraisal with respect to the related
Mortgaged Property, then the Master Servicer shall make its fair value
determination with respect to such Mortgage Loan as soon as reasonably
practicable (but in any event within thirty (30) days) after the Master
Servicer's receipt of such new Appraisal. Such fair value determination
shall be made in accordance with the Servicing Standards. In determining
the fair value of any Defaulted Mortgage Loan, the Master Servicer shall
take into account, among other factors, the period and amount of the
delinquency on such Mortgage Loan, the occupancy level and physical
condition of the related Mortgaged Property, the state of the local
economy in the area where the Mortgaged Property is located, and the time
and expense associated with a purchaser's foreclosing on the related
Mortgaged Property. In addition, the Master Servicer shall refer to the
Determination Information and all other relevant information delivered to
it by the Special Servicer or otherwise contained in the Mortgage File;
provided, that the Master Servicer shall take account of any change in
circumstances regarding the related Mortgaged Property known to the Master
Servicer that has occurred subsequent to, and that would, in the Master
Servicer's reasonable judgment, materially affect the value of the related
Mortgaged Property reflected in, such appraisal. Furthermore, the Master
Servicer shall consider all available objective third-party information
obtained from generally available sources, as well as information obtained
from vendors providing real estate services to the Master Servicer,
concerning the market for distressed real estate loans and the real estate
market for the subject property type in the area where the related
Mortgaged Property is located. The Master Servicer may conclusively rely
on the opinion and reports of independent third parties in making such
determination. The Master Servicer shall be entitled to receive out of the
Certificate Account as additional compensation a $1,000 fee plus
reasonable out of pocket costs and expenses for the determination made in
accordance with this clause (iv), provided, however, with respect to any
Mortgage Loan, the $1,000 fee shall be collectible once. The reasonable
cost of all third party consultants and related reports (in the event that
such inspection report is pursuant to this Section 3.18 and not an annual
inspection pursuant to Section 3.12), including but not limited to
appraisals, inspection reports and broker opinions of value, reasonably
incurred by the Master Servicer pursuant to this Section 3.18(a)(iv) shall
constitute, and be reimbursable as, Servicing Advances; provided, that the
Master Servicer may rely on the most current Appraisal and property
inspection report obtained for the related Mortgaged Property pursuant to
Section 3.12. The other parties to this Agreement shall cooperate with all
reasonable requests for information.
Notwithstanding anything contained in this clause (iv) to the
contrary, if the Special Servicer or the Controlling Class Option Holder,
or any of their respective Affiliates, is identified in the Purchase
Option Notice as the Person expected to acquire the related Mortgage Loan,
and the Option Price is based upon the Special Servicer's fair value
determination, and the Master Servicer and the Special Servicer are
Affiliates, the Trustee, subject to the Directing Certificateholder's
reasonable prior written consent, which consent shall not be unreasonably
withheld, shall designate an Independent third party, independent of the
Directing Certificateholder, to determine whether the Option Price
represents fair value for the Defaulted Mortgage Loan, in the manner and
within the time set forth in the first paragraph of this clause (iv). In
the event that the Trustee is called upon to designate such a third party
to make such determination, the Trustee will not assume any responsibility
for such third party's determination which determination the Trustee shall
be entitled to conclusively rely upon. The Master Servicer, at the
direction of the Trustee, may pay such third party a fee of up to $1,000
out of the Certificate Account. The reasonable costs of such Independent
third party appraisals, all inspection reports and broker opinions of
value, reasonably incurred by the Trustee or any such third party pursuant
to this paragraph shall be advanced by the Master Servicer and shall
constitute, and be reimbursable as, Servicing Advances. In connection with
the Trustee's designating an Independent third party, the Special Servicer
shall deliver to the Trustee for such Independent third party's use the
Determination Information.
In the event the Master Servicer or any designated third party, as
applicable, determines that the Option Price is less than the fair value
of the Defaulted Mortgage Loan, such party shall provide its
determination, together with all information and reports it relied upon in
making such determination, to the Special Servicer, who may then adjust
its fair value determination and, consequently, the Option Price, pursuant
to Section 3.18(a)(i). The Special Servicer shall promptly provide written
notice of any adjustment of the Option Price to the Option Holder whose
Purchase Option has been declared effective pursuant to clause (iii)
above. Upon receipt of such notice, such Option Holder shall have three
(3) Business Days to (i) accept the Option Price as adjusted and proceed
in accordance with clause (v) below, or (ii) reject the Option Price as
adjusted, in which case such Option Holder shall not be obligated to close
the purchase of the Defaulted Mortgage Loan. Upon notice from such Option
Holder, or the Special Servicer, that such Option Holder rejects the
Option Price as adjusted, the Master Servicer and the Trustee shall
provide the notices described in the second paragraph of clause (v) below
and thereafter any Option Holder may exercise its purchase option in
accordance with Section 3.18(a), at the Option Price as adjusted.
(v) The Option Holder whose Purchase Option is declared effective
pursuant to clause (iii) above shall be required to pay the purchase price
specified in its Purchase Option Notice to the Master Servicer within ten
(10) Business Days of its receipt of the Special Servicer's notice
confirming that the exercise of its Purchase Option is effective. Upon
receipt of an Officer's Certificate from the Special Servicer specifying
the date for closing the purchase of the related Defaulted Mortgage Loan,
and the purchase price to be paid therefor, the Trustee shall deliver at
such closing for release to or at the direction of such Option Holder, the
related Mortgage File, and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as shall be
provided to it by such Option Holder and are reasonably necessary to vest
in the purchaser or any designee thereof the ownership of such Mortgage
Loan on a servicing released basis. In connection with any such purchase
by any Person other than it, the Special Servicer shall deliver the
related Mortgage File to or at the direction of the purchaser. In any
case, the Master Servicer shall deposit the purchase price (except that
portion of any purchase price constituting Gain-on-Sale Proceeds which
shall be deposited in the Gain-on-Sale Reserve Account) into the
Certificate Account within one (1) Business Day following the closing of
the sale of the related Defaulted Mortgage Loan.
The Master Servicer shall immediately notify the Trustee and the
Special Servicer upon the holder of the effective Purchase Option's
failure to remit the purchase price specified in its Purchase Option
Notice pursuant to this clause (v). Thereafter, the Trustee shall notify
each Option Holder of such failure and any Option Holder may then exercise
its purchase option in accordance with this Section 3.18(a).
(vi) Unless and until the Purchase Option with respect to any
Defaulted Mortgage Loan is exercised or expires, the Special Servicer
shall pursue such other resolution strategies with respect to such
Defaulted Mortgage Loan, including, without limitation, workout and
foreclosure, as the Special Servicer may deem appropriate, consistent with
the Asset Status Report and the Servicing Standards and the REMIC
Provisions; provided, however, the Special Servicer shall not sell any
Defaulted Mortgage Loan (other than in connection with exercise of a
related Purchase Option or as otherwise permitted in this Section 3.18).
(b) (i) The Special Servicer may purchase any REO Property (at the
Purchase Price therefor) (in the case of a Loan Pair, such purchase shall be a
purchase of the entire REO Property, including the portion relating to the
Companion Loans). The Special Servicer may also offer to sell to any Person any
REO Property (in the case of a Loan Pair, such sale shall be a sale of the
entire REO Property, including the portion relating to the Companion Loans), if
and when the Special Servicer determines, consistent with the Servicing
Standards, that such a sale would be in the best economic interests of the Trust
Fund and the Companion Holders. The Special Servicer shall give the Trustee, the
Master Servicer, the Paying Agent and the Directing Certificateholder not less
than five (5) Business Days' prior written notice of the Purchase Price and its
intention to (i) purchase any REO Property at the Purchase Price therefor or
(ii) sell any REO Property, in which case the Special Servicer shall accept the
highest offer received from any Person for any REO Property in an amount at
least equal to the Purchase Price therefor. To the extent permitted by
applicable law, and subject to the Servicing Standards, the Master Servicer, an
Affiliate of the Master Servicer, the Special Servicer or an Affiliate of the
Special Servicer, or an employee of either of them may act as broker in
connection with the sale of any REO Property and may retain from the proceeds of
such sale a brokerage commission that does not exceed the commission that would
have been earned by an independent broker pursuant to a brokerage agreement
entered into at arm's length.
In the absence of any such offer, the Special Servicer shall accept
the highest offer received from any Person that is determined by the
Special Servicer to be a fair price for such REO Property, if the highest
bidder is a Person other than an Interested Person, or if such price is
determined to be such a price by the Trustee, if the highest bidder is an
Interested Person. Notwithstanding anything to the contrary herein,
neither the Trustee, in its individual capacity, nor any of its Affiliates
may make an offer for or purchase any REO Property pursuant hereto.
The Special Servicer shall not be obligated by either of the
foregoing paragraphs or otherwise to accept the highest offer if the
Special Servicer determines, in accordance with the Servicing Standards,
that rejection of such offer would be in the best interests of the
Certificateholders. In addition, the Special Servicer may accept a lower
offer if it determines, in accordance with the Servicing Standards, that
acceptance of such offer would be in the best interests of the
Certificateholders (for example, if the prospective buyer making the lower
offer is more likely to perform its obligations, or the terms offered by
the prospective buyer making the lower offer are more favorable).
In determining whether any offer received from an Interested Person
represents a fair price for any REO Property, the Trustee shall obtain and
may conclusively rely on the opinion of an Independent appraiser or other
Independent expert in real estate matters retained by the Trustee at the
expense of the Trust Fund. In determining whether any offer constitutes a
fair price for any REO Property, the Special Servicer or the Trustee (or,
if applicable, such appraiser) shall take into account, and any appraiser
or other expert in real estate matters shall be instructed to take into
account, as applicable, among other factors, the physical condition of
such REO Property, the state of the local economy and the Trust Fund's
obligation to comply with REMIC Provisions.
(ii) Subject to the Servicing Standards, the Special Servicer shall
act on behalf of the Trust Fund and the Companion Holders in negotiating
and taking any other action necessary or appropriate in connection with
the sale of any REO Property, including the collection of all amounts
payable in connection therewith. A sale of any REO Property shall be
without recourse to, or representation or warranty by, the Trustee, the
Depositor, the Master Servicer, the Special Servicer, the Paying Agent or
the Trust Fund (except that any contract of sale and assignment and
conveyance documents may contain customary warranties of title, so long as
the only recourse for breach thereof is to the Trust Fund) and, if
consummated in accordance with the terms of this Agreement, none of the
Master Servicer, the Special Servicer, the Depositor, the Paying Agent nor
the Trustee shall have any liability to the Trust Fund or any
Certificateholder or Companion Holder with respect to the purchase price
therefor accepted by the Special Servicer or the Trustee.
(c) Any sale of a Defaulted Mortgage Loan or any REO Property shall
be for cash only (unless changes in the REMIC Provisions or authoritative
interpretations thereof made or issued subsequent to the Startup Day allow a
sale for other consideration).
(d) Notwithstanding anything in this Section 3.18 to the contrary,
pursuant to the terms of the related Intercreditor Agreement, the Companion
Holder will have the right to purchase the related AB Mortgage Loan, as
applicable, or related REO Property. With respect to each AB Mortgage Loan, such
right of the Companion Holder shall be given priority over any provision
described in this Section 3.18, subject, to the extent applicable, to any rights
of a mezzanine lender as set forth in Section 3.18(e). If the AB Mortgage Loan
or REO Property is purchased by the Companion Holder, repurchased by the
applicable Mortgage Loan Seller or otherwise ceases to be subject to this
Agreement, the related Companion Loan will no longer be subject to this
Agreement. None of the Trustee, the Paying Agent, the Master Servicer nor the
Trust Fund shall acquire a Companion Loan.
(e) Notwithstanding anything in this Section 3.18 to the contrary,
any mezzanine lender will have the right to purchase the related Mortgage Loan
and cure defaults relating thereto as and to the extent set forth in the related
mezzanine intercreditor agreement.
(f) In the event the Master Servicer or the Special Servicer has the
right to purchase any Companion Loan on behalf of the Trust pursuant to the
related Intercreditor Agreement, neither the Master Servicer nor the Special
Servicer shall exercise such right.
(g) Notwithstanding anything herein to the contrary, the applicable
party shall be entitled to purchase the Universal Hotel Portfolio Mortgage Loan
in accordance with the terms and conditions set forth in the Universal Hotel
Portfolio Intercreditor Agreement and the Universal Hotel Portfolio Pooling
Agreement.
Section 3.19 Additional Obligations of Master Servicer and Special
Servicer. (a) The Master Servicer shall deliver all Compensating Interest
Payments to the Paying Agent for deposit in the Distribution Account on each P&I
Advance Date, without any right of reimbursement therefor.
(b) The Master Servicer shall provide to each Companion Holder any
reports or notices required to be delivered to such Companion Holder pursuant to
the related Intercreditor Agreement.
(c) Upon the determination that a previously made Advance is a
Nonrecoverable Advance, to the extent that the reimbursement thereof would
exceed the full amount of the principal portion of general collections on the
Mortgage Loans deposited in the Certificate Account and available for
distribution on the next Distribution Date, the Master Servicer or the Trustee,
each at its own option and in its sole discretion, as applicable, instead of
obtaining reimbursement for the remaining amount of such Nonrecoverable Advance
pursuant to Section 3.05(a)(v) immediately, as an accommodation may elect to
refrain from obtaining such reimbursement for such portion of the Nonrecoverable
Advance during the one month collection period ending on the then current
Determination Date, for successive one-month periods for a total period not to
exceed 12 months. If the Master Servicer (or the Trustee) makes such an election
at its sole option and in its sole discretion to defer reimbursement with
respect to all or a portion of a Nonrecoverable Advance (together with interest
thereon), then such Nonrecoverable Advance (together with interest thereon) or
portion thereof shall continue to be fully reimbursable in the subsequent
collection period (subject, again, to the same sole option to defer; it is
acknowledged that, in such a subsequent period, such Nonrecoverable Advance
shall again be payable first from principal collections as described above prior
to payment from other collections). In connection with a potential election by
the Master Servicer (or the Trustee) to refrain from the reimbursement of a
particular Nonrecoverable Advance or portion thereof during the one month
collection period ending on the related Determination Date for any Distribution
Date, the Master Servicer (or the Trustee) shall further be authorized to wait
for principal collections on the Mortgage Loans to be received before making its
determination of whether to refrain from the reimbursement of a particular
Nonrecoverable Advance or portion thereof) until the end of such collection
period; provided, however, if, at any time the Master Servicer or the Trustee,
as applicable, elects not to refrain from obtaining such reimbursement or
otherwise determines that the reimbursement of a Nonrecoverable Advance during a
one-month collection period will exceed the full amount of the principal portion
of general collections deposited in the Collection Account for such Distribution
Date, then the Master Servicer or the Trustee, as applicable, shall use its
reasonable efforts to give S&P and Xxxxx'x 15 days' notice of such
determination, unless (1) the Master Servicer or the Trustee, as applicable,
determines in its sole discretion that waiting 15 days after such a notice could
jeopardize the Master Servicer's or the Trustee's ability, as applicable, to
recover such Nonrecoverable Advances, (2) changed circumstances or new or
different information becomes known to the Master Servicer or the Trustee, as
applicable, that could affect or cause a determination of whether any Advance is
a Nonrecoverable Advance, whether to defer reimbursement of a Nonrecoverable
Advance or the determination in clause (1) above, or (3) the Master Servicer has
not timely received from the Trustee information requested by the Master
Servicer to consider in determining whether to defer reimbursement of a
Nonrecoverable Advance; provided that, if clause (1), (2) or (3) apply, the
Master Servicer or the Trustee, as applicable, shall give Xxxxx'x and S&P notice
of an anticipated reimbursement to it of Nonrecoverable Advances from amounts in
the Certificate Account or Distribution Account, as applicable, allocable to
interest on the Mortgage Loans as soon as reasonably practicable in such
circumstances. The Master Servicer and the Trustee, as applicable, shall have no
liability for any loss, liability or expense resulting from any notice provided
to Xxxxx'x and S&P contemplated by the immediately preceding sentence. Nothing
herein shall give the Master Servicer or the Trustee the right to defer
reimbursement of a Nonrecoverable Advance to the extent of any principal
collections then available in the Certificate Account pursuant to Section
3.05(a)(v).
The foregoing shall not, however, be construed to limit any
liability that may otherwise be imposed on such Person for any failure by such
Person to comply with the conditions to making such an election under this
section or to comply with the terms of this section and the other provisions of
this Agreement that apply once such an election, if any, has been made;
provided, however, that the fact that a decision to recover such Nonrecoverable
Advances over time, or not to do so, benefits some classes of Certificateholders
to the detriment of other classes shall not, with respect to the Master Servicer
or the Special Servicer, as applicable, constitute a violation of the Servicing
Standards and/or with respect to the Trustee, constitute a violation of any
fiduciary duty to Certificateholders or any contractual obligation hereunder. If
the Master Servicer or the Trustee, as applicable, determines, in its sole
discretion, that its ability to fully recover the Nonrecoverable Advances has
been compromised, then the Master Servicer or the Trustee, as applicable, shall
be entitled to immediate reimbursement of Nonrecoverable Advances with interest
thereon at the Reimbursement Rate from all amounts in the Certificate Account
for such Distribution Date (deemed first from principal and then interest). Any
such election by any such party to refrain from reimbursing itself or obtaining
reimbursement for any Nonrecoverable Advance or portion thereof with respect to
any one or more collection periods shall not limit the accrual of interest at
the Reimbursement Rate on such Nonrecoverable Advance for the period prior to
the actual reimbursement of such Nonrecoverable Advance. The Master Servicer's
or the Trustee's, as applicable, agreement to defer reimbursement of such
Nonrecoverable Advances as set forth above is an accommodation to the
Certificateholders and shall not be construed as an obligation on the part of
the Master Servicer or the Trustee, as applicable, or a right of the
Certificateholders. Nothing herein shall be deemed to create in the
Certificateholders a right to prior payment of distributions over the Master
Servicer's or the Trustee's, as applicable, right to reimbursement for Advances
(deferred or otherwise) and accrued interest thereon. In all events, the
decision to defer reimbursement or to seek immediate reimbursement of
Nonrecoverable Advances shall be deemed to be in accordance with the Servicing
Standards and none of the Master Servicer, the Trustee or the other parties to
this Agreement shall have any liability to one another or to any of the
Certificateholders or any of the Companion Holders for any such election that
such party makes as contemplated by this section or for any losses, damages or
other adverse economic or other effects that may arise from such an election.
Section 3.20 Modifications, Waivers, Amendments and Consents. (a)
Except as set forth in Section 3.08(a), Section 3.08(b), Section 3.08(f), this
Section 3.20(a), Section 3.20(d), and Section 3.20(i), but subject to any other
conditions set forth thereunder, and, with respect to an AB Mortgage Loan,
subject to the rights of the related Companion Holder to advise the Master
Servicer with respect to, or consent to, a modification, waiver or amendment
pursuant to the terms of the related Intercreditor Agreement, the Master
Servicer shall not modify, waive or amend a Mortgage Loan and/or a Companion
Loan without the prior written consent of the Special Servicer; provided, that
the Master Servicer shall forward to the Special Servicer requests to extend the
maturity date of a Mortgage Loan and/or Companion Loan that is not a Specially
Serviced Mortgage Loan, and the Special Servicer may approve such request,
provided further, that except as provided in the following sentence, no such
extension entered into pursuant to this Section 3.20(a) shall extend the
Maturity Date beyond the earlier of (i) two years prior to the Rated Final
Distribution Date and (ii) in the case of a Mortgage Loan secured by a leasehold
estate and not also the related fee interest, the date twenty years or, to the
extent consistent with the Servicing Standards giving due consideration to the
remaining term of the ground lease, ten years, prior to the expiration of such
leasehold estate. If such extension would extend the Maturity Date of a Mortgage
Loan and/or Companion Loan for more than twelve months from and after the
original Maturity Date of such Mortgage Loan and/or Companion Loan and such
Mortgage Loan and/or Companion Loan is not in default or default with respect
thereto is not reasonably foreseeable, the Master Servicer must provide the
Trustee, the Special Servicer and the Directing Certificateholders with an
Opinion of Counsel (at the expense of the related Mortgagor to the extent
permitted under the Mortgage Loan documents and, if not required to be paid by
the Mortgagor, to be paid as a Servicing Advance and the Special Servicer shall
not consent to such extension without the consent of the Directing
Certificateholder) that such extension would not constitute a "significant
modification" of the Mortgage Loan and/or Companion Loan within the meaning of
Treasury Regulations Section 1.860G-2(b). Notwithstanding the foregoing, the
Master Servicer, without the consent of the Special Servicer, may modify or
amend the terms of any Mortgage Loan and/or Companion Loan in order to (i) cure
any ambiguity or mistake therein or (ii) correct or supplement any provisions
therein which may be inconsistent with any other provisions therein or correct
any error, provided, that, if the Mortgage Loan and/or Companion Loan is not in
default or default with respect thereto is not reasonably foreseeable, such
modification or amendment would not be a "significant modification" of the
Mortgage Loan and/or Companion Loan within the meaning of Treasury Regulations
Section 1.860G-2(b).
Subject to applicable law and the Mortgage Loan documents, neither
the Master Servicer nor the Special Servicer shall permit the substitution of
any Mortgaged Property (or any portion thereof) for one or more other parcels of
real property at any time the Mortgage Loan is not in default pursuant to the
terms of the related Mortgage Loan documents or default with respect thereto is
not reasonably foreseeable unless (i) the Master Servicer or the Special
Servicer, as applicable, obtains from each Rating Agency (and delivers to the
Directing Certificateholder) a written confirmation that such substitution will
not cause a downgrade, qualification or withdrawal of the then current rating
assigned to any of the Certificates and (ii) either (a) such substitution is at
the unilateral option of the Mortgagor or otherwise occurs automatically
pursuant to the terms of the Mortgage Loan in effect on the Startup Day, within
the meaning of Treasury Regulations Section 1.1001-3, or (b) it has received an
Opinion of Counsel to the effect that such substitution would not be a
"significant modification" of the Mortgage Loan within the meaning of Treasury
Regulations Section 1.860G-2(b).
(b) If the Special Servicer determines that a modification, waiver
or amendment (including, without limitation, the forgiveness or deferral of
interest or principal or the substitution of collateral pursuant to the terms of
the Mortgage Loan or otherwise, the release of collateral or the pledge of
additional collateral) of the terms of a Specially Serviced Mortgage Loan with
respect to which a payment default or other material default has occurred or a
payment default or other material default is, in the Special Servicer's
judgment, reasonably foreseeable (as evidenced by an Officer's Certificate of
the Special Servicer), is reasonably likely to produce a greater recovery on a
net present value basis (the relevant discounting to be performed at the related
Mortgage Rate) to the Trust and, if applicable, the Companion Holders as the
holders of such Companion Loans than liquidation of such Specially Serviced
Mortgage Loan, then the Special Servicer may agree to a modification, waiver or
amendment of such Specially Serviced Mortgage Loan, subject to (x) the
provisions of this Section 3.20(b) and Section 3.20(c), (y) the approval of the
Directing Certificateholder as provided in Section 3.21 and (z) with respect to
an AB Mortgage Loan, the rights of the related Companion Holder to advise the
Special Servicer with respect to, or consent to, such modification, waiver or
amendment pursuant to the terms of the related Intercreditor Agreement.
The Special Servicer shall use its reasonable efforts to the extent
possible to cause each Specially Serviced Mortgage Loan to fully amortize prior
to the Rated Final Distribution Date and shall not agree to a modification,
waiver or amendment of any term of any Specially Serviced Mortgage Loan if such
modification, waiver or amendment would extend the maturity date of any such
Specially Serviced Mortgage Loan to a date occurring later than the earlier of
(a) two years prior to the Rated Final Distribution Date and (b) if such
Specially Serviced Mortgage Loan is secured by a leasehold estate and not also
the related fee interest, the date occurring twenty years or, to the extent
consistent with the Servicing Standards giving due consideration to the
remaining term of the ground lease, with the consent of the Directing
Certificateholder, ten years prior to the expiration of such leasehold estate.
(c) Any provision of this Section 3.20 to the contrary
notwithstanding, except when a Mortgage Loan and/or Companion Loan is in default
or default with respect thereto is reasonably foreseeable, no fee described in
this paragraph shall be collected by any Master Servicer or Special Servicer
from a Mortgagor (or on behalf of the Mortgagor) in conjunction with any consent
or any modification, waiver or amendment of a Mortgage Loan or Companion Loan,
as applicable (unless the amount thereof is specified in the related Mortgage
Note) if the collection of such fee would cause such consent, modification,
waiver or amendment to be a "significant modification" of the Mortgage Note
within the meaning of Treasury Regulations Section 1.860G-2(b).
(d) To the extent consistent with this Agreement, the Master
Servicer or the Special Servicer may agree to any waiver, modification or
amendment of a Mortgage Loan or Companion Loan that is not in default or as to
which default is not reasonably foreseeable only if it provides the Trustee and
the Paying Agent with an Opinion of Counsel (at the expense of the related
Mortgagor or such other Person requesting such modification or, if such expense
cannot be collected from the related Mortgagor or such other Person, to be paid
by the Master Servicer or Special Servicer as a Servicing Advance; provided that
the Master Servicer or Special Servicer, as applicable, shall use its reasonable
best efforts to collect such fee from the Mortgagor or such other Person to the
extent permitted under the related Mortgage Loan documents) to the effect that
the contemplated waiver, modification or amendment (i) will not be a
"significant modification" of the Mortgage Loan within the meaning of Treasury
Regulations Section 1.860G-2(b) and (ii) will not cause (x) either the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC for
purposes of the Code or (y) either the Lower-Tier REMIC or the Upper-Tier REMIC
to be subject to any tax under the REMIC Provisions. Notwithstanding the
foregoing, neither the Master Servicer nor the Special Servicer may waive the
payment of any Yield Maintenance Charge or the requirement that any prepayment
of a Mortgage Loan be made on a Due Date, or if not made on a Due Date, be
accompanied by all interest that would be due on the next Due Date with respect
to any Mortgage Loan or Companion Loan that is not a Specially Serviced Mortgage
Loan.
(e) In the event of a modification which creates Mortgage Deferred
Interest, such Mortgage Deferred Interest will be allocated to reduce the
Distributable Certificate Interest of the Class or Classes of Certificates
pursuant to Section 4.06.
(f) Subject to Section 3.20(c), the Master Servicer and the Special
Servicer each may, as a condition to its granting any request by a Mortgagor for
consent, modification (including extensions), waiver or indulgence or any other
matter or thing, the granting of which is within the Master Servicer's or the
Special Servicer's, as the case may be, discretion pursuant to the terms of the
instruments evidencing or securing the related Mortgage Loan or Companion Loan
and is permitted by the terms of this Agreement, require that such Mortgagor pay
to the Master Servicer or the Special Servicer, as the case may be, as
additional servicing compensation, a reasonable or customary fee, for the
additional services performed in connection with such request.
(g) All modifications (including extensions), waivers and amendments
of the Mortgage Loans and/or Companion Loans entered into pursuant to this
Section 3.20 shall be in writing, signed by the Master Servicer or the Special
Servicer, as the case may be, and the related Mortgagor (and by any guarantor of
the related Mortgage Loan, if such guarantor's signature is required by the
Special Servicer in accordance with the Servicing Standards).
(h) Each of the Master Servicer and the Special Servicer shall
notify the Rating Agencies, the Trustee, the Directing Certificateholder and
each other in writing of any modification, waiver or amendment of any term of
any Mortgage Loan or Companion Loan and the date thereof, and shall deliver to
the Trustee or the related Custodian with a copy to the Master Servicer (if such
notice is being delivered by the Special Servicer) for deposit in the related
Mortgage File, an original counterpart of the agreement relating to such
modification, waiver or amendment, promptly (and in any event within 10 Business
Days) following the execution thereof. Following receipt of the Master
Servicer's or the Special Servicer's, as applicable, delivery of the aforesaid
modification, waiver or amendment to the Paying Agent, the Paying Agent shall
forward a copy thereof to each Holder of a Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class O and Class NR Certificate
upon request.
(i) Notwithstanding the foregoing, neither the Master Servicer nor
the Special Servicer shall permit the substitution of any Mortgaged Property
pursuant to the defeasance provisions of any Mortgage Loan unless such
defeasance complies with Treasury Regulations Section 1.860G-2(a)(8) and the
Master Servicer or the Special Servicer, as applicable, has received (i) a
certificate of an Independent certified public accountant to the effect that
such substituted property will provide cash flows sufficient to meet all
payments of interest and principal (including payments at maturity) on such
Mortgage Loan in compliance with the requirements of the terms of the related
Mortgage Loan documents and, if applicable, Companion Loan documents, (ii) one
or more Opinions of Counsel (at the expense of the related Mortgagor) to the
effect that the Trustee, on behalf of the Trust Fund, will have a first priority
perfected security interest in such substituted Mortgaged Property; provided,
however, that, to the extent consistent with the related Mortgage Loan documents
and, if applicable, Companion Loan documents, the related Mortgagor shall pay
the cost of any such opinion as a condition to granting such defeasance, (iii)
to the extent consistent with the related Mortgage Loan documents, the Mortgagor
shall establish a single purpose entity to act as a successor Mortgagor, if so
required by the Rating Agencies, (iv) to the extent permissible under the
related Mortgage Loan documents and, if applicable, Companion Loan documents,
the Master Servicer or Special Servicer, as applicable shall use its reasonable
efforts to require the related Mortgagor to pay all costs of such defeasance,
including but not limited to the cost of maintaining any successor Mortgagor and
(v) to the extent permissible under the Mortgage Loan documents and, if
applicable, Companion Loan documents, the Master Servicer or Special Servicer,
as applicable shall obtain, at the expense of the related Mortgagor, written
confirmation from the Rating Agencies that such defeasance will not cause the
downgrade, withdrawal or modification of the then current ratings of the
Certificates; provided, however, that the Master Servicer or Special Servicer,
as applicable shall not be required to obtain such written confirmation from S&P
unless such Mortgage Loan (or Mortgage Loans if the single purpose entity
established pursuant to clause (iii) above holds assets for more than one
Mortgagor) at the time of such defeasance is [(A) one of the ten largest
Mortgage Loans by Stated Principal Balance, (B) a Mortgage Loan with a Cut-off
Date Principal Balance greater than $20,000,000 or (C) a Mortgage Loan that
represents 5% or more of the Cut-off Date Principal Balance of all Mortgage
Loans] and (b) the Master Servicer or Special Servicer, as applicable shall not
be required to obtain the Xxxxx'x confirmation referenced in clause (v) above
with respect to any Mortgage Loan which has a Stated Principal Balance less than
$20,000,000 and represents less than 5% of the Stated Principal Balance of all
the Mortgage Loans, so long as such Mortgage Loan is not one of the ten largest
Mortgage Loans by Stated Principal Balance.
(j) Notwithstanding anything herein or in the related Mortgage Loan
documents and, if applicable, Companion Loan documents to the contrary, the
Master Servicer or the Special Servicer may permit the substitution of
"government securities," within the meaning of Section 2(a)(16) of the
Investment Company Act of 1940, that comply with Treasury Regulations Section
1.860G-2(a)(8) for any Mortgaged Property pursuant to the defeasance provisions
of any Mortgage Loan (or any portion thereof) in lieu of the defeasance
collateral specified in the related Mortgage Loan or Companion Loan documents;
provided, that the Master Servicer or the Special Servicer reasonably determines
that allowing their use would not cause a default or event of default to become
reasonably foreseeable and the Master Servicer or the Special Servicer receives,
to the extent permitted under the related Mortgage Loan documents, an Opinion of
Counsel (at the expense of the Mortgagor to the extent permitted under the
Mortgage Loan documents and, if applicable, Companion Loan documents) to the
effect that such use would not be and would not constitute a "significant
modification" of such Mortgage Loan or Companion Loan pursuant to Treasury
Regulations Section 1.860G-2(b) and would not otherwise constitute an Adverse
REMIC Event with respect to any REMIC; provided further, that the requirements
set forth in Section 3.20(i) (including the ratings confirmations) are
satisfied; provided further, that such securities are backed by the full faith
and credit of the United States government, or the Master Servicer or the
Special Servicer shall obtain a written confirmation of each Rating Agency that
the use of such securities will not result in the downgrade, withdrawal or
qualification of the then current ratings of any Class of Certificates
outstanding.
(k) If required under the related Mortgage Loan or Companion Loan
documents or if otherwise consistent with the Servicing Standards, the Master
Servicer shall establish and maintain one or more accounts (the "Defeasance
Accounts"), which shall be Eligible Accounts, into which all payments received
by the Master Servicer from any defeasance collateral substituted for any
Mortgaged Property shall be deposited and retained, and shall administer such
Defeasance Accounts in accordance with the Mortgage Loan or Companion Loan
documents. Notwithstanding the foregoing, in no event shall the Master Servicer
permit such amounts to be maintained in the Defeasance Account for a period in
excess of 90 days, unless such amounts are reinvested by the Master Servicer in
"government securities," within the meaning of Section 2(a)(16) of the
Investment Company Act of 1940, that comply with Treasury Regulations Section
1.860G-2(a)(8). To the extent not required or permitted to be placed in a
separate account, the Master Servicer shall deposit all payments received by it
from defeasance collateral substituted for any Mortgaged Property into the
Certificate Account and treat any such payments as payments made on the Mortgage
Loan or Companion Loan in advance of its Due Date in accordance with clause
(a)(i) of the definition of Available Distribution Amount, and not as a
prepayment of the related Mortgage Loan or Companion Loan. Notwithstanding
anything herein to the contrary, in no event shall the Master Servicer permit
such amounts to be maintained in the Certificate Account for a period in excess
of 365 days (or 366 days in the case of a leap year).
Section 3.21 Transfer of Servicing Between Master Servicer and
Special Servicer; Recordkeeping; Asset Status Report. (a) Upon determining that
a Servicing Transfer Event has occurred with respect to any Mortgage Loan or
Companion Loan, the Master Servicer or the Special Servicer, as applicable,
shall promptly give notice to the Master Servicer or the Special Servicer, as
applicable, and the Directing Certificateholder thereof, and the Master Servicer
shall deliver the related Mortgage File and Servicing File to the Special
Servicer and shall use its reasonable efforts to provide the Special Servicer
with all information, documents and records (including records stored
electronically on computer tapes, magnetic discs and the like) relating to the
Mortgage Loan and, if applicable, the related Companion Loan, either in the
Master Servicer's possession or otherwise available to the Master Servicer
without undue burden or expense, and reasonably requested by the Special
Servicer to enable it to assume its functions hereunder with respect thereto.
The Master Servicer shall use its reasonable efforts to comply with the
preceding sentence within 5 Business Days of the occurrence of each related
Servicing Transfer Event and in any event shall continue to act as Master
Servicer and administrator of such Mortgage Loan and, if applicable, the related
Companion Loan(s) until the Special Servicer has commenced the servicing of such
Mortgage Loan and, if applicable, the related Companion Loan. The Master
Servicer shall deliver to the Trustee, the Paying Agent and the Directing
Certificateholder a copy of the notice of such Servicing Transfer Event provided
by the Master Servicer to the Special Servicer, or by the Special Servicer to
the Master Servicer, pursuant to this Section. The Paying Agent shall deliver to
each Controlling Class Certificateholder a copy of the notice of such Servicing
Transfer Event provided by the Master Servicer pursuant to this Section.
Upon determining that a Specially Serviced Mortgage Loan or
Companion Loan (other than an REO Loan) has become current and has remained
current for three consecutive Monthly Payments (provided that (i) no additional
Servicing Transfer Event is foreseeable in the reasonable judgment of the
Special Servicer, and (ii) for such purposes taking into account any
modification or amendment of such Mortgage Loan and, if applicable, the related
Companion Loan(s)), and that no other Servicing Transfer Event is continuing
with respect thereto, the Special Servicer shall immediately give notice thereof
to the Master Servicer and the Directing Certificateholder, and shall return the
related Mortgage File and Servicing File to the Master Servicer (or copies
thereof if copies only were delivered to the Special Servicer) and upon giving
such notice, and returning such Mortgage File and Servicing File to the Master
Servicer, the Special Servicer's obligation to service such Corrected Mortgage
Loan shall terminate and the obligations of the Master Servicer to service and
administer such Mortgage Loan and, if applicable, the Companion Loan, shall
recommence.
(b) In servicing any Specially Serviced Mortgage Loans and Companion
Loans, the Special Servicer will provide to the Trustee originals of documents
included within the definition of "Mortgage File" for inclusion in the related
Mortgage File (with a copy of each such original to the Master Servicer), and
provide the Master Servicer with copies of any additional related Mortgage Loan
or Companion Loan information including correspondence with the related
Mortgagor.
(c) Notwithstanding the provisions of Section 3.12(d), the Master
Servicer shall maintain ongoing payment records with respect to each of the
Specially Serviced Mortgage Loans and Companion Loans and REO Properties and
shall provide the Special Servicer with any information in its possession with
respect to such records to enable the Special Servicer to perform its duties
under this Agreement, provided, that this statement shall not be construed to
require the Master Servicer to produce any additional reports.
(d) No later than 45 days after a Servicing Transfer Event for a
Mortgage Loan (other than the Universal Hotel Portfolio Mortgage Loan) and, if
applicable, the Companion Loan, the Special Servicer shall deliver to the
Directing Certificateholder a report (the "Asset Status Report") with respect to
such Mortgage Loan or Companion Loan and the related Mortgaged Property;
provided, however, the Special Servicer shall not be required to deliver an
Asset Status Report to the Directing Certificateholder if they are the same
entity. Such Asset Status Report shall set forth the following information to
the extent reasonably determinable based on the information that was delivered
to the Special Servicer in connection with the transfer of servicing pursuant to
the Servicing Transfer Event:
(i) summary of the status of such Specially Serviced Mortgage Loan
and any negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer, consistent with the Servicing
Standards, that are applicable to the exercise of remedies as aforesaid
and to the enforcement of any related guaranties or other collateral for
the related Mortgage Loan and whether outside legal counsel has been
retained;
(iii) the most current rent roll and income or operating statement
available for the related Mortgaged Property;
(iv) the Special Servicer's recommendations on how such Specially
Serviced Mortgage Loan might be returned to performing status and returned
to the Master Servicer for regular servicing or otherwise realized upon;
(v) a copy of the last obtained Appraisal of the Mortgaged Property;
and
(vi) such other information as the Special Servicer deems relevant
in light of the Servicing Standards.
If within ten Business Days of receiving an Asset Status Report, the
Directing Certificateholder does not disapprove such Asset Status Report in
writing, the Special Servicer shall implement the recommended action as outlined
in such Asset Status Report; provided, however, that the Special Servicer may
not take any action that is contrary to applicable law, the Servicing Standards
or the terms of the applicable Mortgage Loan documents. If the Directing
Certificateholder disapproves such Asset Status Report within 10 Business Days
of receipt, the Special Servicer will revise such Asset Status Report and
deliver to the Directing Certificateholder a new Asset Status Report as soon as
practicable, but in no event later than 30 days after such disapproval. The
Special Servicer shall revise such Asset Status Report as described above in
this Section 3.21(d) until the Directing Certificateholder shall fail to
disapprove such revised Asset Status Report in writing within ten (10) Business
Days of receiving such revised Asset Status Report or until the Special Servicer
makes one of the determinations described below. Notwithstanding the foregoing,
in the event the Directing Certificateholder and the Special Servicer have been
unable to agree upon an Asset Status Report with respect to a Specially Serviced
Mortgage Loan within 90 days, of the Directing Certificateholder's receipt of
the initial Asset Status Report, the Special Servicer, subject to the rights of
the related Companion Holder pursuant to the related Intercreditor Agreement, if
applicable, shall implement the actions directed by the Directing
Certificateholder unless such actions would violate the Servicing Standard, in
which case the Special Servicer shall implement actions described in the most
recent Asset Status Report submitted to the Directing Certificateholder by the
Special Servicer. The Special Servicer may, from time to time, modify any Asset
Status Report it has previously delivered and implement such report, provided
such report shall have been prepared, reviewed and not rejected pursuant to the
terms of this Section. Notwithstanding the foregoing, the Special Servicer (i)
may, following the occurrence of an extraordinary event with respect to the
related Mortgaged Property, take any action set forth in such Asset Status
Report before the expiration of a ten (10) Business Day period if the Special
Servicer has reasonably determined that failure to take such action would
materially and adversely affect the interests of the Certificateholders or, if a
Loan Pair is involved, the Companion Holder, and it has made a reasonable effort
to contact the Directing Certificateholder and (ii) in any case, shall determine
whether such affirmative disapproval is not in the best interest of all the
Certificateholders pursuant to the Servicing Standards. Each final Asset Status
Report shall be delivered to the Master Servicer, the Trustee (upon request),
the Paying Agent and each Rating Agency.
The Special Servicer shall have the authority to meet with the
Mortgagor for any Specially Serviced Mortgage Loan and take such actions
consistent with the Servicing Standards and the related Asset Status Report. The
Special Servicer shall not take any action inconsistent with the related Asset
Status Report, unless such action would be required in order to act in
accordance with the Servicing Standards.
No direction or disapproval of the Directing Certificateholder shall
(a) require or cause the Special Servicer to violate the terms of a Specially
Serviced Mortgage Loan, applicable law or any provision of this Agreement,
including the Special Servicer's obligation to act in accordance with the
Servicing Standards and to maintain the REMIC status of each of the Lower-Tier
REMIC and the Upper-Tier REMIC or (b) result in the imposition of a "prohibited
transaction" or "prohibited contribution" tax under the REMIC Provisions, or (c)
expose the Master Servicer, the Special Servicer, the Depositor, the Mortgage
Loan Sellers, the Trust Fund, the Trustee, the Paying Agent or their respective
officers, directors, employees or agents to any claim, suit or liability or (d)
materially expand the scope of the Special Servicer's, Trustee's or the Master
Servicer's responsibilities under this Agreement.
(e) Upon receiving notice of (i) the occurrence of the events
described in clause (v) of the definition of Servicing Transfer Event (without
regard to the 60 day period set forth therein), or (ii) the request by a
Mortgagor for the amendment or modification of a Mortgage Loan or Companion Loan
which is not a Specially Serviced Mortgage Loan for which the Special Servicer
is responsible for such amendment or modification pursuant to Section 3.08 and
Section 3.20, the Master Servicer shall with reasonable promptness give notice
thereof, and shall use its reasonable efforts to provide the Special Servicer
with all information relating to the Mortgage Loan or Companion Loan and
reasonably requested by the Special Servicer to enable it to negotiate with the
related Mortgagor and prepare for any such proceedings. The Master Servicer
shall use its reasonable efforts to comply with the preceding sentence within 5
Business Days of the occurrence of each such event.
Section 3.22 Sub-Servicing Agreements. (a) The Master Servicer may
enter into Sub-Servicing Agreements to provide for the performance by third
parties of any or all of its respective obligations under Articles II, III, IV
and X hereof; provided, that the Sub-Servicing Agreement as amended or modified:
(i) is consistent with this Agreement in all material respects and requires the
Sub-Servicer to comply with all of the applicable conditions of this Agreement;
(ii) provides that if the Master Servicer shall for any reason no longer act in
such capacity hereunder (including, without limitation, by reason of an Event of
Default), the Trustee or its designee shall thereupon assume all of the rights
and, except to the extent they arose prior to the date of assumption,
obligations of the Master Servicer under such agreement, or, alternatively, may
act in accordance with Section 7.02 hereof under the circumstances described
therein (subject to Section 3.22(g) hereof); (iii) provides that the Trustee for
the benefit of the Certificateholders, the related Companion Holder (if
applicable) and the Trustee (as holder of the Uncertificated Lower-Tier
Interests) shall be a third party beneficiary under such Sub-Servicing
Agreement, but that (except to the extent the Trustee or its designee assumes
the obligations of the Master Servicer thereunder as contemplated by the
immediately preceding clause (ii)) none of the Trust Fund, the Trustee, the
Paying Agent, the Special Servicer, any successor Master Servicer or any
Certificateholder (or the related Companion Holder, if applicable) shall have
any duties under such Sub-Servicing Agreement or any liabilities arising
therefrom; (iv) permits any purchaser of a Mortgage Loan pursuant to this
Agreement to terminate such Sub-Servicing Agreement with respect to such
purchased Mortgage Loan at its option and without penalty; provided, however,
that the Initial Sub-Servicing Agreements may only be terminated by the Trustee
or its designees as contemplated by Section 3.22(g) hereof and in such
additional manner and by such other Persons, as provided in, such Sub-Servicing
Agreement; (v) does not permit the Sub-Servicer any direct rights of
indemnification that may be satisfied out of assets of the Trust Fund and (vi)
does not permit the Sub-Servicer to modify any Mortgage Loan unless and to the
extent the Master Servicer is permitted hereunder to modify such Mortgage Loan.
Any successor Master Servicer hereunder shall, upon becoming successor Master
Servicer, be assigned and shall assume any Sub-Servicing Agreements from the
predecessor master servicer (subject to Section 3.22(g) hereof). In addition,
each Sub-Servicing Agreement entered into by the Master Servicer may but need
not provide that the obligations of the Sub-Servicer thereunder shall terminate
with respect to any Mortgage Loan serviced thereunder at the time such Mortgage
Loan becomes a Specially Serviced Mortgage Loan; provided, however, that the
Sub-Servicing Agreement may provide (if the Sub-Servicing Agreement provides for
Advances by the Sub-Servicer, although it need not so provide) that the
Sub-Servicer will continue to make all Advances and calculations and prepare all
reports required under the Sub-Servicing Agreement with respect to Specially
Serviced Mortgage Loans and continue to collect its Primary Servicing Fees as if
no Servicing Transfer Event had occurred and with respect to REO Properties (and
the related REO Loans) as if no REO Acquisition had occurred and to render such
incidental services with respect to such Specially Serviced Mortgage Loans and
REO Properties as are specifically provided for in such Sub-Servicing Agreement.
The Master Servicer shall deliver to the Trustee copies of all Sub-Servicing
Agreements, and any amendments thereto and modifications thereof, entered into
by it promptly upon its execution and delivery of such documents. References in
this Agreement to actions taken or to be taken by the Master Servicer include
actions taken or to be taken by a Sub-Servicer on behalf of the Master Servicer;
and, in connection therewith, all amounts advanced by any Sub-Servicer (if the
Sub-Servicing Agreement provides for Advances by the Sub-Servicer, although it
need not so provide) to satisfy the obligations of the Master Servicer hereunder
to make Advances shall be deemed to have been advanced by the Master Servicer
out of its own funds and, accordingly, in such event, such 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, and, for so long as they are
outstanding, such Advances shall accrue interest in accordance with Section
3.03(d), such interest to be allocable between the Master Servicer and such
Sub-Servicer as may be provided (if at all) pursuant to the terms of the
Sub-Servicing Agreement. For purposes of this Agreement, the Master Servicer
shall be deemed to have received any payment when a Sub-Servicer retained by it
receives such payment. The Master Servicer shall notify the Special Servicer,
the Trustee and the Depositor in writing promptly of the appointment by it of
any Sub-Servicer, except that the Master Servicer need not provide such notice
as to the Initial Sub-Servicing Agreements.
(b) Each Sub-Servicer shall be authorized to transact business in
the state or states in which the related Mortgaged Properties it is to service
are situated, if and to the extent required by applicable law to the extent
necessary to ensure the enforceability of the related Mortgage Loans or the
compliance with its obligations under the Sub-Servicing Agreement and the Master
Servicer's obligations under this Agreement.
(c) As part of its servicing activities hereunder, the Master
Servicer for the benefit of the Trustee and the Certificateholders, shall (at no
expense to the Trustee, the Certificateholders or the Trust Fund) monitor the
performance and enforce the obligations of each Sub-Servicer under the related
Sub-Servicing Agreement. Such enforcement, including, without limitation, the
legal prosecution of claims, termination of Sub-Servicing Agreements in
accordance with their respective terms and the pursuit of other appropriate
remedies, shall be in such form and carried out to such an extent and at such
time as is in accordance with the Servicing Standards. The Master Servicer shall
have the right to remove a Sub-Servicer retained by it in accordance with the
terms of the related Sub-Servicing Agreement.
(d) In the event the Trustee or its designee becomes successor
Master Servicer and assumes the rights and obligations of the Master Servicer
under any Sub-Servicing Agreement, the Master Servicer, at its expense, shall
deliver to the assuming party all documents and records relating to such
Sub-Servicing Agreement and the Mortgage Loans and, if applicable, Companion
Loans then being serviced thereunder and an accounting of amounts collected and
held on behalf of it thereunder, and otherwise use reasonable efforts to effect
the orderly and efficient transfer of the Sub-Servicing Agreement to the
assuming party.
(e) Notwithstanding the provisions of any Sub-Servicing Agreement
and this Section 3.22, the Master Servicer shall remain obligated and
responsible to the Trustee, the Special Servicer, holders of the Companion Loans
serviced hereunder and the Certificateholders for the performance of its
obligations and duties under this Agreement in accordance with the provisions
hereof to the same extent and under the same terms and conditions as if it alone
were servicing and administering the Mortgage Loans for which it is responsible,
and the Master Servicer shall pay the fees of any Sub-Servicer thereunder as and
when due from its own funds. In no event shall the Trust Fund bear any
termination fee required to be paid to any Sub-Servicer as a result of such
Sub-Servicer's termination under any Sub-Servicing Agreement.
(f) The Trustee shall furnish to any Sub-Servicer any powers of
attorney and other documents necessary or appropriate to enable such
Sub-Servicer to carry out its servicing and administrative duties under any
Sub-Servicing Agreement; provided, however, that the Trustee shall not be held
liable for any negligence, and shall be indemnified by the Sub-Servicer, with
respect to, or misuse of, any such power of attorney by a Sub-Servicer, and
provided further that the use of such power of attorney by a Sub-Servicer is
subject to the last sentence of Section 3.01(b).
(g) Each Sub-Servicing Agreement shall provide that, in the event
the Trustee or any other Person becomes successor Master Servicer, the Trustee
or such successor Master Servicer shall have the right to terminate such
Sub-Servicing Agreement with or without cause and without a fee. Notwithstanding
the foregoing or any other contrary provision in this Agreement, the Trustee and
any successor Master Servicer shall assume each Initial Sub-Servicing Agreement
and (i) the Initial Sub-Servicer's rights and obligations under the Initial
Sub-Servicing Agreement shall expressly survive a termination of the Master
Servicer's servicing rights under this Agreement; provided, that the Initial
Sub-Servicing Agreement has not been terminated in accordance with its
provisions; (ii) any successor Master Servicer, including, without limitation,
the Trustee (if it assumes the servicing obligations of the Master Servicer)
shall be deemed to automatically assume and agree to the then-current Initial
Sub-Servicing Agreement without further action upon becoming the successor
Master Servicer and (iii) this Agreement may not be modified in any manner which
would increase the obligations or limit the rights of the Initial Sub-Servicer
hereunder and/or under the Initial Sub-Servicing Agreement, without the prior
written consent of the Initial Sub-Servicer (which consent shall not be
unreasonably withheld).
(h) With respect to Mortgage Loans subject to a Sub-Servicing
Agreement, the Special Servicer shall, to the extent required, remit amounts,
deliver reports and information, and afford access to facilities and information
to the related Sub-Servicer that would be required to be remitted, delivered or
afforded, as the case may be, to the Master Servicer pursuant to the terms
hereof (and within the same period of time required herein), within a sufficient
period of time to allow the Sub-Servicer to fulfill its obligations under such
Sub-Servicing Agreement and in no event later than 1 Business Day prior to the
applicable Determination Date (or such other date as specified herein).
(i) Notwithstanding any other provision of this Agreement, the
Special Servicer shall not enter into any Sub-Servicing Agreement which provides
for the performance by third parties of any or all of its obligations herein,
unless (i) the Special Servicer receives the consent of the Directing
Certificateholder and (ii) the Special Servicer receives the written
confirmation of S&P that such agreement will not cause the downgrade, withdrawal
or qualification of any of the then current ratings assigned to any Class of
Certificates.
Section 3.23 Representations, Warranties and Covenants of the Master
Servicer. (a) The Master Servicer hereby represents and warrants to the Trustee,
for its own benefit and the benefit of the Certificateholders and to the
Depositor, the Paying Agent and the Special Servicer, as of the Closing Date,
that:
(i) The Master Servicer is a corporation, duly organized, validly
existing and in good standing under the laws of the State of California,
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;
(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, does not (A) violate the Master
Servicer's organizational documents, (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 or (C) violate any law, rule, regulation, order,
judgment or decree to which the Master Servicer or its property is
subject, which, in the case of either (B) or (C), is likely to materially
and adversely affect either the ability of the Master Servicer to perform
its obligations under this Agreement or its financial condition;
(iii) The Master Servicer has the full power and authority to enter
into and consummate all transactions to be performed by it 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 the Trustee, the Special Servicer, the Paying Agent and the
Depositor, 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, insolvency,
reorganization, receivership, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law;
(v) The Master Servicer is not in default with respect to any law,
any order or decree of any court, or any order, regulation or demand of
any federal, state, local or governmental agency, which default, in the
Master Servicer's reasonable judgment is likely to materially and
adversely affect the financial condition or operations of the Master
Servicer or its properties taken as a whole or its ability to perform its
duties and obligations hereunder;
(vi) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer which would
prohibit the Master Servicer from entering into this Agreement or, in the
Master Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Master Servicer
to perform its obligations under this Agreement or the financial condition
of the Master Servicer;
(vii) The Master Servicer has errors and omissions insurance
coverage which is in full force and effect and complies with the
requirements of Section 3.07 hereof; and
(viii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Master Servicer, or compliance by the Master Servicer
with, this Agreement or the consummation of the transactions of the Master
Servicer contemplated by this Agreement, except for any consent, approval,
authorization or order which has been obtained or can be obtained prior to
the actual performance by the Master Servicer of its obligations under
this Agreement, or which, if not obtained would not have a materially
adverse effect on the ability of the Master Servicer to perform its
obligations hereunder.
(b) The representations and warranties set forth in paragraph (a)
above shall survive the execution and delivery of the Agreement.
Section 3.24 Representations, Warranties and Covenants of the
Special Servicer. (a) The Special Servicer hereby represents, warrants and
covenants to the Trustee, for its own benefit and the benefit of the
Certificateholders, the Depositor, the Paying Agent and the Master Servicer, as
of the Closing Date, that:
(i) The Special Servicer is a limited liability company, duly
organized, validly existing and in good standing under the laws of the
Commonwealth of Massachusetts, 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, does not (A) violate the Special
Servicer's organizational documents and by-laws 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, or (C) violate any law, rule,
regulation, order, judgment or decree to which the Special Servicer or its
property is subject, which, in the case of either (B) or (C), is likely to
materially and adversely affect either the ability of the Special Servicer
to perform its obligations under this Agreement or its financial
condition;
(iii) The Special Servicer has the full power and authority to enter
into and consummate all transactions to be performed by it 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 the Trustee, the Master Servicer, the Paying Agent and the
Depositor, constitutes a valid, legal and binding obligation of the
Special Servicer, enforceable against the Special Servicer in accordance
with the terms hereof, subject (A) to applicable bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law;
(v) The Special Servicer is not in default with respect to any law,
any order or decree of any court, or any order, regulation or demand of
any federal, state, local or governmental agency, which default, in the
Special Servicer's reasonable judgment is likely to materially and
adversely affect the financial condition or operations of the Special
Servicer or its properties taken as a whole or its ability to perform its
duties and obligations hereunder;
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer which would
prohibit the Special Servicer from entering into this Agreement or, in the
Special Servicer's good faith and reasonable judgment could reasonably be
expected to materially and adversely affect the ability of the Special
Servicer to perform its obligations under this Agreement;
(vii) Each officer, manager or employee of the Special Servicer that
has or, following the occurrence of a Servicing Transfer Event, would have
responsibilities concerning the servicing and administration of Mortgage
Loans is covered by errors and omissions insurance in the amounts and with
the coverage required by Section 3.07(c); and
(viii) No consent, approval, authorization or order of any court or
governmental agency or body under federal or state law is required for the
execution, delivery and performance by the Special Servicer, or compliance
by the Special Servicer with, this Agreement or the consummation of the
transactions of the Special Servicer contemplated by this Agreement,
except for any consent, approval, authorization or order which has been
obtained or can be obtained prior to the actual performance by the Special
Servicer of its obligations under this Agreement, and which, if not
obtained would not have a materially adverse effect on the ability of the
Special Servicer to perform its obligations hereunder.
(b) The representations and warranties set forth in paragraph (a)
above shall survive the execution and delivery of the Agreement.
Section 3.25 Interest Reserve Account. (a) On each P&I Advance Date
relating to any Interest Accrual Period ending in any January and on any P&I
Advance Date which occurs in a year which is not a leap year relating to any
Interest Accrual Period ending in any December, the Paying Agent, in respect of
the Actual/360 Mortgage Loans, shall deposit into the Interest Reserve Account,
an amount equal to one day's interest on the Stated Principal Balance of the
Interest Reserve Loans as of the Due Date occurring in the month preceding the
month in which such P&I Advance Date occurs at the related Net Mortgage Rate, to
the extent a full Monthly Payment or P&I Advance is made in respect thereof (all
amounts so deposited in any consecutive February and January, "Withheld
Amounts").
(b) On each P&I Advance Date occurring in March, the Paying Agent
shall withdraw, from the Interest Reserve Account an amount equal to the
Withheld Amounts from the preceding January (if applicable) and February, if
any, and deposit such amount into the Lower-Tier Distribution Account.
Section 3.26 Excess Interest Distribution Account. Prior to the
applicable Distribution Date, the Master Servicer is required to remit to the
Paying Agent for deposit into the Excess Interest Distribution Account an amount
equal to the Excess Interest received during the related Due Period.
Section 3.27 Directing Certificateholder Contact with Master
Servicer. No less often than on a monthly basis, each of the Master Servicer and
the Special Servicer shall, without charge, make a knowledgeable Servicing
Officer via telephone available to verbally answer questions from the Directing
Certificateholder regarding the performance and servicing of the Mortgage Loans
and/or REO Properties for which the Master Servicer or the Special Servicer, as
the case may be, is responsible.
Section 3.28 Controlling Class Certificateholders and Directing
Certificateholder; Certain Rights and Powers of Directing Certificateholder. (a)
Each Controlling Class Certificateholder is hereby deemed to have agreed by
virtue of its purchase of a Certificate to provide its name and address to the
Paying Agent and to notify the Master Servicer, the Paying Agent and Special
Servicer of the transfer of any Certificate of a Controlling Class, the
selection of a Directing Certificateholder or the resignation or removal
thereof. The Directing Certificateholder is hereby deemed to have agreed by
virtue of its purchase of a Certificate to notify the Master Servicer, Special
Servicer and Paying Agent when such Certificateholder is appointed Directing
Certificateholder and when it is removed or resigns. To the extent there is only
one Controlling Class Certificateholder and it is also the Special Servicer, it
shall be the Directing Certificateholder.
(b) A "Controlling Class" as of any time of determination shall be
as defined in Article I hereof.
(c) Once a Directing Certificateholder has been selected, each of
the Master Servicer, the Special Servicer, the Depositor, the Trustee, the
Paying Agent and each other Certificateholder (or Certificate Owner, if
applicable) shall be entitled to rely on such selection unless a majority of the
Controlling Class Certificateholders, by Certificate Balance, or such Directing
Certificateholder shall have notified the Master Servicer, Special Servicer, the
Trustee, the Paying Agent and each other Controlling Class Certificateholder, in
writing, of the resignation of such Directing Certificateholder or the selection
of a new Directing Certificateholder. Upon the resignation of a Directing
Certificateholder, the Paying Agent shall request the Controlling Class
Certificateholders to select a new Directing Certificateholder.
(d) Reserved.
(e) Upon request, the Paying Agent shall deliver to the Trustee, the
Special Servicer and the Master Servicer a list of each Controlling Class
Certificateholder and the Directing Certificateholder, including names and
addresses. In addition to the foregoing, within two (2) Business Days of
receiving notice of the selection of a new Directing Certificateholder or the
existence of a new Controlling Class Certificateholder, the Paying Agent shall
notify the Trustee, the Master Servicer and the Special Servicer.
Notwithstanding the foregoing, Cadim TACH inc. shall be the initial Directing
Certificateholder and shall remain so until a successor is appointed pursuant to
the terms of this Agreement.
Until it receives notice to the contrary, each of the Master
Servicer, the Special Servicer, the Paying Agent and the Trustee shall be
entitled to rely on the preceding sentence with respect to the identity of the
Directing Certificateholder.
(f) If at any time a Book-Entry Certificate belongs to a Controlling
Class, the Paying Agent shall notify the related Certificateholders (through the
Depository) of such event.
(g) Each Certificateholder acknowledges and agrees, by its
acceptance of its Certificates, that: (i) the Directing Certificateholder may
have special relationships and interests that conflict with those of Holders of
one or more Classes of Certificates; (ii) the Directing Certificateholder may
act solely in the interests of the Holders of the Controlling Class; (iii) the
Directing Certificateholder does not have any liability or duties to the Holders
of any Class of Certificates other than the Controlling Class; (iv) the
Directing Certificateholder may take actions that favor interests of the Holders
of the Controlling Class over the interests of the Holders of one or more other
Classes of Certificates; and (v) the Directing Certificateholder shall have no
liability whatsoever for having so acted, and no Certificateholder may take any
action whatsoever against the Directing Certificateholder or any director,
officer, employee, agent or principal thereof for having so acted.
(h) Until it receives notice to the contrary, each of the Master
Servicer, the Special Servicer, the Paying Agent and the Trustee shall be
entitled to rely on the most recent notification with respect to the identity of
the Controlling Class Certificateholder and the Directing Certificateholder.
(i) All requirements of the Master Servicer and the Special Servicer
to provide notices, reports, statements or other information (including the
access to information on a website) provided to the Directing Certificateholder
contained in this Agreement shall also apply to each Companion Holder with
respect to information relating to the related AB Mortgage Loan.
Section 3.29 Intercreditor Agreements. Each of the Master Servicer
and Special Servicer acknowledges and agrees that each Loan Pair being serviced
under this Agreement and each Mortgage Loan with mezzanine debt is subject to
the terms and provisions of the related Intercreditor Agreement and each agrees
to service each such Loan Pair and each Mortgage Loan with mezzanine debt in
accordance with the related Intercreditor Agreement and this Agreement,
including, without limitation, effecting distributions and allocating
reimbursement of expenses in accordance with the related Intercreditor Agreement
and, in the event of any conflict, the related Intercreditor Agreement shall
govern. Notwithstanding anything to the contrary in this Agreement, each of the
Master Servicer and Special Servicer agrees not to take any action with respect
to a Loan Pair or the related Mortgaged Property without the prior consent of
the related Companion Holder to the extent that the related Intercreditor
Agreement provides that such Companion Holder is required to consent to such
action. Each of the Master Servicer and Special Servicer acknowledges and agrees
that each Companion Holder and mezzanine lender has the right to purchase the
related Mortgage Loan in each case pursuant to the terms and conditions of the
related Intercreditor Agreement.
Neither the Master Servicer nor the Special Servicer shall have any
liability for any cost, claim or damage that arises from any entitlement in
favor of a Companion Holder under the related Intercreditor Agreement or
conflict between the terms of this Agreement and the terms of such Intercreditor
Agreement. Notwithstanding any provision of any Intercreditor Agreement that may
otherwise require the Master Servicer or the Special Servicer to abide by any
instruction or direction of a Companion Holder, neither the Master Servicer nor
the Special Servicer shall be required to comply with any instruction or
direction the compliance with which requires an Advance that constitutes or
would constitute a Nonrecoverable Advance. In no event shall any expense arising
from compliance with an Intercreditor Agreement constitute an expense to be
borne by the Master Servicer or Special Servicer for its own account without
reimbursement. In no event shall the Master Servicer or the Special Servicer be
required to consult with or obtain the consent of any Companion Holder unless
such Companion Holder has delivered notice of its identity and contact
information to each of the parties to this Agreement (upon which notice each of
the parties to this Agreement shall be conclusively entitled to rely). As of the
Closing Date, the contact information for the Companion Holders is set forth in
Section 11.05 under this Agreement.
No direction or disapproval of the Companion Holders shall (a)
require or cause the Master Servicer or Special Servicer to violate the terms of
a Mortgage Loan, applicable law or any provision of this Agreement, including
the Master Servicer's or Special Servicer's obligation to act in accordance with
the Servicing Standards and to maintain the REMIC status of each of the
Lower-Tier REMIC and the Upper-Tier REMIC or (b) result in the imposition of a
"prohibited transaction" or "prohibited contribution" tax under the REMIC
Provisions, or (c) materially expand the scope of the Special Servicer's,
Trustee's or the Master Servicer's responsibilities under this Agreement.
Section 3.30 Companion Paying Agent. (a) The Master Servicer shall
be the Companion Paying Agent hereunder. The Companion Paying Agent undertakes
to perform such duties and only such duties as are specifically set forth
herein.
(b) No provision of this Agreement shall be construed to relieve the
Companion Paying Agent from liability for its negligent failure to act, bad
faith or its own willful misfeasance; provided, however, that the duties and
obligations of the Companion Paying Agent shall be determined solely by the
express provisions of this Agreement. The Companion Paying Agent shall not be
liable except for the performance of such duties and obligations, no implied
covenants or obligations shall be read into this Agreement against the Companion
Paying Agent. In the absence of bad faith on the part of the Companion Paying
Agent, the Companion Paying Agent may conclusively rely, as to the truth and
correctness of the statements or conclusions expressed therein, upon any
resolutions, certificates, statements, opinions, reports, documents, orders or
other instrument furnished to the Companion Paying Agent by any Person and which
on their face do not contradict the requirements of this Agreement.
(c) Upon the resignation or removal of the Master Servicer pursuant
to Article VII of this Agreement, the Companion Paying Agent shall be deemed
simultaneously to resign or be removed.
(d) This Section shall survive the termination of this Agreement or
the resignation or removal of the Companion Paying Agent, as regards rights
accrued prior to such resignation or removal.
Section 3.31 Companion Register. The Companion Paying Agent shall
maintain a register (the "Companion Register") on which it will record the names
and address of, and wire transfer instructions for, the Companion Holders from
time to time, to the extent such information is provided in writing to it by
each Companion Holder. The initial Companion Holders, along with their
respective name, address, wiring instructions and tax identification number, are
listed on Exhibit S hereto. In the event a Companion Holder transfers a
Companion Loan without notice to the Companion Paying Agent, the Companion
Paying Agent shall have no liability for any misdirected payment in the
Companion Loan and shall have no obligation to recover and redirect such
payment.
The Companion Paying Agent shall promptly provide the name and
address of the Companion Holder to any party hereto or any successor Companion
Holder upon written request and any such Person may, without further
investigation, conclusively rely upon such information. The Companion Paying
Agent shall have no liability to any Person for the provision of any such name
and address.
Section 3.32 Certain Matters Relating to the Universal Hotel
Portfolio Mortgage Loan.
(a) In the event that any of the Universal Hotel Portfolio Trustee,
the Universal Hotel Portfolio Master Servicer or the Universal Hotel Portfolio
Special Servicer shall be replaced in accordance with the terms of the Universal
Hotel Portfolio Pooling Agreement, the Master Servicer and the Special Servicer
shall acknowledge its successor as the successor to the Universal Hotel
Portfolio Trustee, the Universal Hotel Portfolio Master Servicer or the
Universal Hotel Portfolio Special Servicer, as the case may be.
(b) In the event the Trustee, as holder of the Universal Hotel
Portfolio Mortgage Loan, becomes entitled to exercise the rights of the
Universal Hotel Portfolio Controlling Companion Loan Noteholder, it shall do so
at the direction of the Directing Certificateholder in accordance with the terms
of the Universal Hotel Portfolio Intercreditor Agreement.
(c) The Servicer shall deliver, or cause to be delivered, to the
Paying Agent, promptly following receipt from the Universal Hotel Portfolio
Master Servicer, the Universal Hotel Portfolio Special Servicer or the Universal
Hotel Portfolio Trustee, any servicing reports concerning the Universal Hotel
Portfolio Whole Loan.
[End of Article III]
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions. (a) On each Distribution Date, to the
extent of the Available Distribution Amount for such Distribution Date, the
Paying Agent shall be deemed to transfer the Lower-Tier Regular Distribution
Amount from the Lower-Tier Distribution Account to the Upper-Tier Distribution
Account in the amounts and priorities set forth in Section 4.01(b) with respect
to each Class of Uncertificated Lower-Tier Interests, and immediately
thereafter, shall make distributions thereof from the Upper-Tier Distribution
Account in the following order of priority, satisfying in full, to the extent
required and possible, each priority before making any distribution with respect
to any succeeding priority:
(i) first, concurrently (A) to the Holders of the Class A-1
Certificates, the Class A-2 Certificates, the Class A-3 Certificates, the
Class A-4A Certificates, the Class A-4B Certificates and the Class A-SB
Certificates, pro rata, (based upon their respective entitlements to
interest for such Distribution Date), in respect of interest, from the
Loan Group 1 Available Distribution Amount and up to an amount equal to
the aggregate Interest Distribution Amount in respect of such Classes of
Certificates for such Distribution Date, (B) to the Holders of the Class
A-1A Certificates, in respect of interest, from the Loan Group 2 Available
Distribution Amount and up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date and (C) on the Class X-1 and Class X-2 Certificates, pro
rata, from the Available Distribution Amount for such Distribution Date up
to an amount equal to the aggregate Interest Distribution Amount for those
Classes, without regard to Loan Group, in each case based upon their
respective entitlements to interest for that Distribution Date; provided,
on any Distribution Date where the Available Distribution Amount (or
applicable portion thereof) is not sufficient to make distributions in
full to the related Classes of Certificates as described above, the
Available Distribution Amount will be allocated among the above Classes of
Certificates without regard to Loan Group, pro rata, in accordance with
the respective amounts of Distributable Certificate Interest in respect of
such Classes of Certificates on such Distribution Date, in an amount equal
to all Interest Distribution Amounts in respect of each such Class of
Certificates for such Distribution Date; provided, further, that Interest
Distribution Amounts for the Class A-4A and Class A-4B Certificates will
be distributed first to the Class A-4A Certificates and then to the Class
A-4B Certificates, in the amount of their respective Interest Distribution
Amounts;
(ii) second, to the Holders of the Class A-1 Certificates, the Class
A-2 Certificates, the Class A-3 Certificates, the Class A-4A Certificates,
the Class A-4B Certificates, the Class A-SB Certificates and Class A-1A
Certificates, in reduction of the Certificate Balances thereof,
concurrently: (A)(1) first, to the Holders of the Class A-SB Certificates,
in an amount up to the Loan Group 1 Principal Distribution Amount and,
after the outstanding Certificate Balance of the Class A-1A Certificates
has been reduced to zero, the Loan Group 2 Principal Distribution Amount
for such Distribution Date remaining after the payments specified in
clause (B) below have been made on such Distribution Date, until the sum
of the Certificate Balance of the Class A-SB Certificates is reduced to
the Class A-SB Planned Principal Balance; (2) second, to the Holders of
the Class A-1 Certificates, in an amount up to the Loan Group 1 Principal
Distribution Amount (or a portion of it remaining after payments specified
in clause (A)(1) above) and, after the outstanding Certificate Balance of
the Class A-1A Certificates has been reduced to zero, the Loan Group 2
Principal Distribution Amount, in each case, to the extent remaining after
payments as specified in clause (A)(1) above have been made on such
Distribution Date, until the outstanding Certificate Balance of the Class
A-1 Certificates has been reduced to zero; (3) third, to the Holders of
the Class A-2 Certificates, in an amount up to the Loan Group 1 Principal
Distribution Amount (or a portion of it remaining after payments specified
in clauses (A)(1) and (2) above) and, after the outstanding Certificate
Balance of the Class A-1A Certificates has been reduced to zero, the Loan
Group 2 Principal Distribution Amount, in each case, to the extent
remaining after payments as specified in clauses (A)(1) and (2) above and
clause (B) below have been made on such Distribution Date, until the
outstanding Certificate Balance of the Class A-2 Certificates has been
reduced to zero; (4) fourth, to the Holders of the Class A-3 Certificates,
in an amount up to the Loan Group 1 Principal Distribution Amount (or a
portion of it remaining after payments as specified in clauses (A)(1), (2)
and (3) above) and, after the outstanding Certificate Balance of the Class
A-1A Certificates has been reduced to zero, the Loan Group 2 Principal
Distribution Amount, in each case, to the extent remaining after payments
as specified in clauses (A)(1), (2) and (3) above and clause (B) below
have been made on such Distribution Date, until the outstanding
Certificate Balance of the Class A-3 Certificates has been reduced to
zero; (5) fifth, to the Holders of the Class A-4A Certificates, in an
amount up to the Loan Group 1 Principal Distribution Amount (or the
portion of it remaining after payments specified in clauses (A)(1), (2),
(3) and (4) above) and, after the outstanding Certificate Balance of the
Class A-1A Certificates has been reduced to zero, the Loan Group 2
Principal Distribution Amount, in each case, to the extent remaining after
payments as specified in clauses (A)(1), (2), (3) and (4) above and clause
(B) below have been made on such Distribution Date, until the outstanding
Certificate Balance of the Class A-4A Certificates has been reduced to
zero and (6) sixth, to the Holders of the Class A-4B Certificates, in an
amount up to the Loan Group 1 Principal Distribution Amount (or the
portion of it remaining after payments specified in clauses (A)(1), (2),
(3), (4) and (5) above) and, after the outstanding Certificate Balance of
the Class A-1A Certificates has been reduced to zero, the Loan Group 2
Principal Distribution Amount, in each case, to the extent remaining after
payments as specified in clauses (A)(1), (2), (3), (4) and (5) above have
been made on such Distribution Date, until the outstanding Certificate
Balance of the Class A-4B Certificates has been reduced to zero; (7)
seventh, to the Holders of the Class A-SB Certificates, in an amount up to
the Loan Group 1 Principal Distribution Amount (or the portion of it
remaining after payments specified in clauses (A)(1), (2), (3), (4), (5)
and (6) above) and, after the outstanding Certificate Balance of the Class
A-1A Certificates has been reduced to zero, the Loan Group 2 Principal
Distribution Amount, in each case, to the extent remaining after payments
as specified in clauses (A)(1), (2), (3), (4), (5) and (6) above have been
made on such Distribution Date, until the outstanding Certificate Balance
of the Class A-SB Certificates has been reduced to zero; and (B) to the
Holders of the Class A-1A Certificates, in an amount up to the Loan Group
2 Principal Distribution Amount and, after the outstanding Certificate
Balances of the Class A-4B and Class A-SB Certificates have been reduced
to zero, the Loan Group 1 Principal Distribution Amount remaining after
payments specified in clauses (A)(1), (2), (3), (4), (5), (6) and (7)
above have been made on such Distribution Date, until the Certificate
Balance of the Class A-1A Certificates has been reduced to zero;
(iii) third, to the Holders of the Class A-1 Certificates, Class A-2
Certificates, Class A-3 Certificates, Class A-4A Certificates, Class A-4B
Certificates, Class A-SB Certificates and Class A-1A Certificates, pro
rata (based upon the aggregate unreimbursed Collateral Support Deficit
allocated to each such Class), until all amounts of Collateral Support
Deficit previously allocated to such Classes, but not previously
reimbursed, have been reimbursed in full; provided that reimbursement for
any Collateral Support Deficit for the Class A-4A and Class A-4B
Certificates will be distributed first to the Class A-4A Certificates and
then to the Class A-4B Certificates;
(iv) fourth, to the Holders of the Class A-J Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount for such Distribution Date;
(v) fifth, after the Certificate Balances of the Class A
Certificates have been reduced to zero, to the Holders of the Class A-J
Certificates in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A Certificates
on such Distribution Date), until the outstanding Certificate Balance of
the Class A-J Certificates has been reduced to zero;
(vi) sixth, to the Holders of the Class A-J Certificates, until all
amounts of Collateral Support Deficit previously allocated to the Class
A-J Certificates, but not previously reimbursed, have been reimbursed in
full;
(vii) seventh, to the Holders of Class B Certificates, in respect of
interest, up to an amount equal to the aggregate Interest Distribution
Amounts in respect of such Class of Certificates for such Distribution
Date;
(viii) eighth, after the Certificate Balances of the Class A
Certificates and the Class A-J Certificates have been reduced to zero, to
the Holders of the Class B Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class A Certificates and the Class A-J Certificates on such Distribution
Date), until the outstanding Certificate Balance of the Class B
Certificates has been reduced to zero;
(ix) ninth, to the Holders of the Class B Certificates, until all
amounts of Collateral Support Deficit previously allocated to the Class B
Certificates, as applicable, but not previously reimbursed, have been
reimbursed in full;
(x) tenth, to the Holders of the Class C Certificates, in respect of
interest, up to an amount equal to the aggregate Interest Distribution
Amount in respect of such Class of Certificates for such Distribution
Date;
(xi) eleventh, after the Certificate Balances of the Class A
Certificates, the Class A-J Certificates and the Class B Certificates have
been reduced to zero, to the Holders of the Class C Certificates, in
reduction of the Certificate Balance thereof, an amount equal to the
Principal Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A Certificates, the Class A-J
Certificates and the Class B Certificates on such Distribution Date),
until the outstanding Certificate Balance of the Class C Certificates has
been reduced to zero;
(xii) twelfth, to the Holders of the Class C Certificates, until all
amounts of Collateral Support Deficit previously allocated to the Class C
Certificates, but not previously reimbursed, have been reimbursed in full;
(xiii) thirteenth, to the Holders of the Class D Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xiv) fourteenth, after the Certificate Balances of the Class A
Certificates, the Class A-J Certificates, the Class B Certificates and
Class C Certificates have been reduced to zero, to the Holders of the
Class D Certificates, in reduction of the Certificate Balance thereof, an
amount equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A Certificates,
the Class A-J Certificates, Class B Certificates and the Class C
Certificates on such Distribution Date), until the outstanding Certificate
Balance of the Class D Certificates has been reduced to zero;
(xv) fifteenth, to the Holders of the Class D Certificates, until
all amounts of Collateral Support Deficit previously allocated to the
Class D Certificates, but not previously reimbursed, have been reimbursed
in full;
(xvi) sixteenth, to the Holders of the Class E Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xvii) seventeenth, after the Certificate Balances of the Class A
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates and the Class D Certificates have been reduced to zero, to
the Holders of the Class E Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class A Certificates, Class A-J Certificates, Class B Certificates, Class
C Certificates and the Class D Certificates on such Distribution Date),
until the outstanding Certificate Balance of the Class E Certificates has
been reduced to zero;
(xviii) eighteenth, to the Holders of the Class E Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class E Certificates, but not previously reimbursed, have been
reimbursed in full;
(xix) nineteenth, to the Holders of the Class F Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xx) twentieth, after the Certificate Balances of the Class A
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates and Class E Certificates have been
reduced to zero, to the Holders of the Class F Certificates, in reduction
of the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A Certificates, Class A-J
Certificates, Class B Certificates, Class C Certificates, Class D
Certificates and Class E Certificates on such Distribution Date), until
the outstanding Certificate Balance of the Class F Certificates has been
reduced to zero;
(xxi) twenty-first, to the Holders of the Class F Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class F Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxii) twenty-second, to the Holders of the Class G Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxiii) twenty-third, after the Certificate Balances of the Class A
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates and Class F
Certificates have been reduced to zero, to the Holders of the Class G
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A Certificates,
Class A-J Certificates, Class B Certificates, Class C Certificates, Class
D Certificates, Class E Certificates and Class F Certificates on such
Distribution Date), until the outstanding Certificate Balance of the Class
G Certificates has been reduced to zero;
(xxiv) twenty-fourth, to the Holders of the Class G Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class G Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxv) twenty-fifth, to the Holders of the Class H Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxvi) twenty-sixth, after the Certificate Balances of the Class A
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates and Class G Certificates have been reduced to zero, to the
Holders of the Class H Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class A Certificates, Class A-J Certificates, Class B Certificates, Class
C Certificates, Class D Certificates, Class E Certificates, Class F
Certificates and Class G Certificates on such Distribution Date), until
the outstanding Certificate Balance of the Class H Certificates has been
reduced to zero;
(xxvii) twenty-seventh, to the Holders of the Class H Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class H Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxviii) twenty-eighth, to the Holders of the Class J Certificates
in respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxix) twenty-ninth, after the Certificate Balances of the Class A
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates and Class H Certificates have been
reduced to zero, to the Holders of the Class J Certificates, in reduction
of the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A Certificates, Class A-J
Certificates, Class B Certificates, Class C Certificates, Class D
Certificates, Class E Certificates, Class F Certificates, Class G
Certificates and Class H Certificates on such Distribution Date), until
the outstanding Certificate Balance of the Class J Certificates has been
reduced to zero;
(xxx) thirtieth, to the Holders of the Class J Certificates, until
all amounts of Collateral Support Deficit previously allocated to the
Class J Certificates, but not previously reimbursed, have been reimbursed
in full;
(xxxi) thirty-first, to the Holders of the Class K Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxxii) thirty-second, after the Certificate Balances of the Class A
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates and Class J
Certificates have been reduced to zero, to the Holders of the Class K
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A Certificates,
Class A-J Certificates, Class B Certificates, Class C Certificates, Class
D Certificates, Class E Certificates, Class F Certificates, Class G
Certificates, Class H Certificates and Class J Certificates on such
Distribution Date), until the outstanding Certificate Balance of the Class
K Certificates has been reduced to zero;
(xxxiii) thirty-third, to the Holders of the Class K Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class K Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxxiv) thirty-fourth, to the Holders of the Class L Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxxv) thirty-fifth, after the Certificate Balances of the Class A
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates and Class K Certificates have been reduced to zero, to the
Holders of the Class L Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class A Certificates, Class A-J Certificates, Class B Certificates, Class
C Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates and Class K Certificates on such Distribution Date), until
the outstanding Certificate Balance of the Class L Certificates has been
reduced to zero;
(xxxvi) thirty-sixth, to the Holders of the Class L Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class L Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxxvii) thirty-seventh, to the Holders of the Class M Certificates
in respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxxviii) thirty-eighth, after the Certificate Balances of the Class
A Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates and Class L Certificates have been
reduced to zero, to the Holders of the Class M Certificates, in reduction
of the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A Certificates, Class A-J
Certificates, Class B Certificates, Class C Certificates, Class D
Certificates, Class E Certificates, Class F Certificates, Class G
Certificates, Class H Certificates, Class J Certificates, Class K
Certificates and Class L Certificates a on such Distribution Date), until
the outstanding Certificate Balance of the Class M Certificates has been
reduced to zero;
(xxxix) thirty-ninth, to the Holders of the Class M Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class M Certificates, but not previously reimbursed, have been
reimbursed in full;
(xl) fortieth, to the Holders of the Class N Certificates in respect
of interest, up to an amount equal to the aggregate Interest Distribution
Amount in respect of such Class of Certificates for such Distribution
Date;
(xli) forty-first, after the Certificate Balances of the Class A
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates, Class L Certificates and Class M
Certificates have been reduced to zero, to the Holders of the Class N
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A Certificates,
Class A-J Certificates, Class B Certificates, Class C Certificates, Class
D Certificates, Class E Certificates, Class F Certificates, Class G
Certificates, Class H Certificates, Class J Certificates, Class K
Certificates, Class L Certificates and Class M Certificates on such
Distribution Date), until the outstanding Certificate Balance of the Class
N Certificates has been reduced to zero;
(xlii) forty-second, to the Holders of the Class N Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class N Certificates, but not previously reimbursed, have been
reimbursed in full;
(xliii) forty-third, to the Holders of the Class O Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xliv) forty-fourth, after the Certificate Balances of the Class A
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates, Class L Certificates, Class M
Certificates and Class N Certificates have been reduced to zero, to the
Holders of the Class O Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class A Certificates, Class A-J Certificates, Class B Certificates, Class
C Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates, Class L Certificates, Class M
Certificates and Class N Certificates on such Distribution Date), until
the outstanding Certificate Balance of the Class O Certificates has been
reduced to zero;
(xlv) forty-fifth, to the Holders of the Class O Certificates, until
all amounts of Collateral Support Deficit previously allocated to the
Class O Certificates, but not previously reimbursed, have been reimbursed
in full;
(xlvi) forty-sixth, to the Holders of the Class NR Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xlvii) forty-seventh, after the Certificate Balances of the Class A
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates, Class L Certificates, Class M
Certificates, Class N Certificates and Class O Certificates have been
reduced to zero, to the Holders of the Class NR Certificates, in reduction
of the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A Certificates, Class A-J
Certificates, Class B Certificates, Class C Certificates, Class D
Certificates, Class E Certificates, Class F Certificates, Class G
Certificates, Class H Certificates, Class J Certificates, Class K
Certificates, Class L Certificates, Class M Certificates, Class N
Certificates and Class O Certificates on such Distribution Date), until
the outstanding Certificate Balance of the Class NR Certificates has been
reduced to zero;
(xlviii) forty-eighth, to the Holders of the Class NR Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class NR Certificates, but not previously reimbursed, have been
reimbursed in full; and
(xlix) forty-ninth, to the Holders of the Class R Certificates, the
amount, if any, of the Available Distribution Amount remaining in the
Upper-Tier Distribution Account.
If, in connection with any Distribution Date, the Paying Agent has
reported the amount of an anticipated distribution to DTC based on the receipt
of payments as of the Determination Date and additional Monthly Payments,
balloon payments or unscheduled principal payments are subsequently received by
the Master Servicer and required to be part of the Available Distribution Amount
for such Distribution Date, the Master Servicer shall promptly notify the Paying
Agent and the Paying Agent will use commercially reasonable efforts to cause DTC
to make the revised distribution on a timely basis on such Distribution Date.
None of the Master Servicer, the Special Servicer or the Paying Agent shall be
liable or held responsible for any resulting delay in the making of such
distribution to Certificateholders solely on the basis of the actions described
in the preceding sentence.
(b) On each Distribution Date, each Uncertificated Lower-Tier
Interest shall be deemed to receive distributions in respect of principal or
reimbursement of Collateral Support Deficit in an amount equal to the amount of
principal or reimbursement of Collateral Support Deficit actually distributable
to its respective Related Certificates as provided in Sections 4.01(a), 4.01(c)
and 4.01(d) (in the case of (i) the Class A-1 Certificates, first, to the Class
LA-1-1 Uncertificated Interest, second, to the Class LA-1-2 Uncertificated
Interest, third, to the Class LA-1-3 Uncertificated Interest, and fourth, to the
Class LA-1-4 Uncertificated Interest, in each case, until reduced to zero, (ii)
the Class A-1A Certificates, first, to the Class LA-1A-1 Uncertificated
Interest, second, to the Class LA-1A-2 Uncertificated Interest, third, to the
Class LA-1A-3 Uncertificated Interest, fourth, to the Class LA-1A-4
Uncertificated Interest, fifth, to the Class LA-1A-5 Uncertificated Interest,
sixth, to the Class LA-1A-6 Uncertificated Interest, seventh, to the Class
LA-1A-7 Uncertificated Interest, eighth, to the Class LA-1A-8 Uncertificated
Interest, ninth, to the Class LA-1A-9 Uncertificated Interest, tenth, to the
Class LA-1A-10 Uncertificated Interest, eleventh, to the Class LA-1A-11
Uncertificated Interest, twelfth, to the Class LA-1A-12 Uncertificated Interest,
thirteenth, to the Class LA-1A-13 Uncertificated Interest, fourteenth, to the
Class LA-1A-14 Uncertificated Interest, and fifteenth, to the Class LA-1A-15
Uncertificated Interest, in each case, until reduced to zero, (iii) the Class
A-2 Certificates, first, to the Class LA-2-1 Uncertificated Interest, second, to
the Class LA-2-2 Uncertificated Interest, third, to the Class LA-2-3
Uncertificated Interest, and fourth, to the Class LA-2-4 Uncertificated
Interest, in each case, until reduced to zero, (iv) the Class A-3 Certificates,
first, to the Class LA-3-1 Uncertificated Interest, second, to the Class LA-3-2
Uncertificated Interest, third, to the Class LA-3-3 Uncertificated Interest,
fourth, to the Class LA-3-4 Uncertificated Interest, fifth, to the Class LA-3-5
Uncertificated Interest, sixth, to the Class LA-3-6 Uncertificated Interest and
seventh, to the Class LA-3-7 Uncertificated Interest, in each case, until
reduced to zero, (v) the Class A-4A Certificates, first, to the Class LA-4A-1
Uncertificated Interest, second, to the Class LA-4A-2 Uncertificated Interest,
third, to the Class LA-4A-3 Uncertificated Interest, in each case, until reduced
to zero, (vi) the Class A-SB Certificates, first, to the Class LA-SB-1
Uncertificated Interest, second, to the Class LA-SB-2 Uncertificated Interest,
third, to the Class LA-SB-3 Uncertificated Interest, fourth, to the Class
LA-SB-4 Uncertificated Interest, fifth, to the Class LA-SB-5 Uncertificated
Interest, and sixth, to the Class LA-SB-6 Uncertificated Interest, in each case,
until reduced to zero, (vii) the Class D Certificates, first, to the Class LD-1
Uncertificated Interest, second, to the Class LD-2 Uncertificated Interest,
third to the Class LD-3 Uncertificated Interest, and fourth, to the Class LD-4
Uncertificated Interest, in each case, until reduced to zero, (viii) the Class E
Certificates, first, to the Class LE-1 Uncertificated Interest and second to the
Class LE-2 Uncertificated Interest, in each case, until reduced to zero, (ix)
the Class F Certificates, first, to the Class LF-1 Uncertificated Interest,
second, to the Class LF-2 Uncertificated Interest and third, to the Class LF-3
Uncertificated Interest, in each case, until reduced to zero, (x) the Class G
Certificates, first, to the Class LG-1 Uncertificated Interest and second, to
the Class LG-2 Uncertificated Interest, in each case, until reduced to zero,
(xi) the Class H Certificates, first, to the Class LH-1 Uncertificated Interest,
second, to the Class LH-2 Uncertificated Interest and third, to the Class LH-3
Uncertificated Interest, in each case, until reduced to zero and (xii) the Class
K Certificates, first, to the Class LK-1 Uncertificated Interest, and second, to
the Class LK-2 Uncertificated Interest, in each case, until reduced to zero.
On each Distribution Date, each Uncertificated Lower-Tier Interest
shall be deemed to receive distributions in respect of interest in an amount
equal to the Interest Distribution Amount in respect of its Related Certificates
(in the case of each of (i) the Class LA-1-1, Class LA-1-2, Class LA-1-3 and
Class LA-1-4 Uncertificated Interests, (ii) the Class LA-1A-1, Class LA-1A-2,
Class LA-1A-3, Class LA-1A-4, Class LA-1A-5, Class LA-1A-6, Class LA-1A-7, Class
LA-1A-8, Class LA-1A-9, Class LA-1A-10, Class LA-1A-11, Class LA-1A-12, Class
LA-1A-13, Class LA-1A-14 and Class LA-1A-15 Uncertificated Interests, (iii) the
Class LA-2-1, Class LA-2-2, Class LA-2-3 and Class LA-2-4 Uncertificated
Interests, (iv) the Class LA-3-1, Class LA-3-2, Class LA-3-3, Class LA-3-4,
Class LA-3-5, Class LA-3-6 and Class LA-3-7 Uncertificated Interests, (v) the
Class LA-4A-1, Class LA-4A-2 and Class LA-4A-3 Uncertificated Interests, (vi)
the Class LA-SB-1, Class LA-SB-2, Class LA-SB-3, Class LA-SB-4, Class LA-SB-5
and Class LA-SB-6 Uncertificated Interests, (vii) the Class LD-1, Class LD-2,
Class LD-3 and Class LD-4 Uncertificated Interests, the Class D Certificates,
(viii) the Class LE-1 and Class LE-2 Uncertificated Interests, (ix) the Class
LF-1, Class LF-2, and Class LF-3 Uncertificated Interests, (x) the Class LG-1
and Class LG-2 and Uncertificated Interests (xi) the Class LH-1, Class LH-2, and
Class LH-3 Uncertificated Interests and (xii) the Class LK-1 and LK-2
Uncertificated Interests, pro rata, based on their respective Certificate
Balances) and its related Component of the Class X-1 Certificates and Class X-2
Certificates, in each case to the extent actually distributable thereon as
provided in Section 4.01(a). For this purpose, interest distributed on the Class
X-1 Certificates and Class X-2 Certificates shall be treated as having been paid
to their respective Components pro rata, based on the interest accrued with
respect thereto at its Class X-1 Strip Rate or Class X-2 Strip Rate. Such
amounts distributed to the Uncertificated Lower-Tier Interests in respect of
principal and interest with respect to any Distribution Date are referred to
herein collectively as the "Lower-Tier Regular Distribution Amount," and shall
be made by the Paying Agent by deeming such Lower-Tier Regular Distribution
Amount to be deposited in the Upper-Tier Distribution Account.
As of any date, the principal balance of each Uncertificated
Lower-Tier Interest equals the Certificate Balance of the Related Certificates
with respect thereto (in the case of the aggregate of (i) the Class LA-1-1,
Class LA-1-2, Class LA-1-3 and Class LA-1-4 Uncertificated Interests, the Class
A-1 Certificates, (ii) the Class LA-1A-1, Class LA-1A-2, Class LA-1A-3, Class
LA-1A-4, Class LA-1A-5, Class LA-1A-6, Class LA-1A-7 and Class LA-1A-8, Class
LA-1A-9, Class LA-1A-10, Class LA-1A-11, Class LA-1A-12, Class LA-1A-13, Class
LA-1A-14 and Class LA-1A-15 Uncertificated Interests, the Class A-1A
Certificates, (iii) the Class LA-2-1, Class LA-2-2, Class LA-2-3 and Class
LA-2-4 Uncertificated Interests, the Class A-2 Certificates, (iv) the Class
LA-3-1 Uncertificated Interest, Class LA-3-2 Uncertificated Interest, Class
LA-3-3 Uncertificated Interest, Class LA-3-4 Uncertificated Interest, Class
LA-3-5 Uncertificated Interest, Class LA-3-6 Uncertificated Interest and Class
LA-3-7 Uncertificated Interest, the Class A-3 Certificates, (v) the Class
LA-4A-1 Uncertificated Interest, Class LA-4A-2 Uncertificated Interest, Class
LA-4A-3 Uncertificated Interest, the Class A-4A Certificates, (vi) the Class
LA-SB-1, Class LA-SB-2, Class LA-SB-3, Class LA-SB-4, Class LA-SB-5 and Class
LA-SB-6 Uncertificated Interests, the Class A-SB Certificates, (vii) the Class
LD-1, Class LD-2, Class LD-3 and Class LD-4 Uncertified Interests, the Class D
Certificates, (viii) the Class LE-1 and Class LE-2 Uncertificated Interests, the
Class E Certificates, (ix) the Class LF-1, Class LF-2 and Class LF-3
Uncertificated Interests, the Class F Certificates, (x) the Class LG-1 and Class
LG-2 Uncertificated Interests, the Class G Certificates, (xi) the Class LH-1,
Class LH-2 and Class LH-3 Uncertificated Interests, the Class H Certificates and
(xii) the Class LK-1 and LK-2 Uncertificated Interests, the Class K
Certificates), as adjusted for the allocation of Collateral Support Deficits, as
provided in Sections 4.04(b) and 4.04(c) and of Certificate Deferred Interest as
provided in Section 4.06. The initial principal balance of each Uncertificated
Lower-Tier Interest equals the respective Original Lower-Tier Principal Amount.
The pass-through rate with respect to each Uncertificated Lower-Tier Interest
will be the rate per annum set forth in the Preliminary Statement hereto.
Any amount that remains in the Lower-Tier Distribution Account on
each Distribution Date after distribution of the Lower-Tier Regular Distribution
Amount and distribution of Yield Maintenance Charges pursuant to Section
4.01(d)(iii) shall be distributed to the Holders of the Class LR Certificates
(but only to the extent of the Available Distribution Amount for such
Distribution Date remaining in the Lower-Tier Distribution Account, if any).
(c) Notwithstanding the priorities set forth in clause (a) above, on
and after the Distribution Date on which the Certificate Balances of the
Subordinate Certificates have all been reduced to zero, the Principal
Distribution Amount will be distributed, pro rata, among the Class A-1, Class
A-1A, Class A-2, Class A-3, Class A-4A, Class A-4B and Class A-SB Certificates
without regard to Loan Group, based on their respective Certificate Balances
immediately prior to such Distribution Date, in reduction of their respective
Certificate Balances, until the Certificate Balance of each such Class is
reduced to zero, and any amounts representing reimbursements of Collateral
Support Deficits previously allocated to such Classes, if available, will be
distributed pro rata based on their respective Certificate Balances, without
regard to Loan Group.
(d) (i) On each Distribution Date, Yield Maintenance Charges
collected during the related Due Period will be distributed by the Paying Agent
to the following Classes: to the Class A-1 Certificates, Class A-2 Certificates,
Class A-3 Certificates, Class A-4A Certificates, Class A-4B Certificates, Class
A-SB Certificates, Class A-1A Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E Certificates,
Class F Certificates, Class G Certificates, Class H Certificates, Class J
Certificates and Class K Certificates with respect to the related Loan Group on
each Distribution Date, in an amount equal to the product of (a) a fraction
whose numerator is the amount distributed as principal to such Class on such
Distribution Date, and whose denominator is the total amount distributed as
principal to the Class A-1 Certificates, Class A-2 Certificates, Class A-3
Certificates, Class A-4A Certificates, Class A-4B Certificates, Class A-SB
Certificates, Class A-1A Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E Certificates,
Class F Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates, Class L Certificates, Class M Certificates,
Class N Certificates, Class O Certificates and Class NR Certificates on such
Distribution Date, (b) the Base Interest Fraction for the related principal
payment on such Class of Certificates, and (c) the aggregate amount of Yield
Maintenance Charges collected on such principal prepayments during the related
Due Period. If more than one such Class of Certificates is entitled to
distributions of principal with respect to the related Loan Group on any
particular Distribution Date on which Yield Maintenance Charges are
distributable, the aggregate amount of such Yield Maintenance Charges will be
allocated among all such Classes up to, and on a pro rata basis in accordance
with, their respective entitlements thereto in accordance with this Section
4.01(d)(i). Any Yield Maintenance Charge collected during the related Due Period
remaining after such distributions will be distributed to the holders of the
Class X-1 Certificates.
(ii) No Yield Maintenance Charge will be distributed to the holders
of the Class L, Class M, Class N, Class O, Class NR, Class X-2, Class S or
Residual Certificates. After the Certificate Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-3 Certificates, Class A-4A
Certificates, Class A-4B Certificates, Class A-SB Certificates, Class A-1A
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates and Class K Certificates have been reduced to zero, all Yield
Maintenance Charges with respect to the Mortgage Loans shall be
distributed to the holders of the Class X-1 Certificates.
(iii) All distributions of Yield Maintenance Charges made in respect
of the respective Classes of Regular Certificates on each Distribution
Date pursuant to Section 4.01(d)(i) shall first be deemed to be
distributed from the Lower-Tier REMIC to the Upper-Tier REMIC in respect
of the Uncertificated Lower-Tier Interests, pro rata based upon the amount
of principal distributed in respect of each such Class of Uncertificated
Lower-Tier Interests for such Distribution Date pursuant to Section
4.01(b) above.
(e) On each Distribution Date, the Paying Agent shall withdraw
amounts from the Gain-on-Sale Reserve Account and shall distribute such amounts
to reimburse the Holders of the Regular Certificates (in order of Class
priority) (first deeming such amounts to be distributed with respect to the
Related Uncertificated Lower-Tier Interests) up to an amount equal to all
Collateral Support Deficits, if any, previously deemed allocated to them and
unreimbursed after application of the Available Distribution Amount for such
Distribution Date. Amounts paid from the Gain-on-Sale Reserve Account will not
reduce the Certificate Balances of the Classes of Certificates receiving such
distributions. Any amounts remaining in the Gain-on-Sale Reserve Account after
such distributions shall be applied to offset future Collateral Support Deficits
and related Collateral Support Deficits and upon termination of the Trust Fund,
any amounts remaining in the Gain-on-Sale Reserve Account shall be distributed
to the Class LR Certificateholders.
(f) 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 specifically provided in Sections 4.01(g),
4.01(h) and 9.01, 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 Paying Agent with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent Distribution Dates), or otherwise by check mailed
to such Certificateholder at its address in the Certificate Registrar. The final
distribution on each Certificate (determined without regard to any possible
future reimbursement of Collateral Support Deficit previously allocated to such
Certificate) will be made in 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.
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 Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the Paying
Agent, the Certificate Registrar, the Depositor, the Master Servicer, the
Special Servicer or the Underwriters shall have any responsibility therefor
except as otherwise provided by this Agreement or applicable law.
(g) Except as otherwise provided in Section 9.01, whenever the
Paying Agent expects that the final distribution with respect to any Class of
Certificates (determined without regard to any possible future reimbursement of
any amount of Collateral Support Deficit previously allocated to such Class of
Certificates) will be made on the next Distribution Date, the Paying Agent
shall, no later than the related P&I Advance Determination Date, mail to each
Holder on such date of such Class of Certificates a notice to the effect that:
(i) the Paying Agent 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
offices of the Certificate Registrar or such other location therein
specified; and
(ii) no interest shall accrue on such Certificates from and after
such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(g) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Paying Agent, directly or through an agent, shall take such
steps to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any Certificateholder on any
amount held in trust hereunder by the Paying Agent as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 4.01(g).
(h) Distributions in reimbursement of Collateral Support Deficit
previously allocated to the Regular Certificates shall be made in the amounts
and manner specified in Section 4.01(a) or Section 4.01(e), as applicable, to
the Holders of the respective Class otherwise entitled to distributions of
interest and principal on such Class on the relevant Distribution Date; provided
that all distributions in reimbursement of Collateral Support Deficit previously
allocated to a Class of Certificates which has since been retired shall be to
the prior Holders that surrendered the Certificates of such Class upon
retirement thereof and shall be made by check mailed to the address of each such
prior Holder last shown in the Certificate Register. Notice of any such
distribution to a prior Holder shall be made in accordance with Section 11.05 at
such last address. The amount of the distribution to each such prior Holder
shall be based upon the aggregate Percentage Interest evidenced by the
Certificates surrendered thereby. If the check mailed to any such prior Holder
is returned uncashed, then the amount thereof shall be set aside and held
uninvested in trust for the benefit of such prior Holder, and the Paying Agent
shall attempt to contact such prior Holder in the manner contemplated by Section
4.01(g) as if such Holder had failed to surrender its Certificates.
(i) On each Distribution Date, any Excess Interest received during
the related Due Period with respect to the Mortgage Loans shall be distributed
to the holders of the Class S Certificates from the Excess Interest Distribution
Account.
(j) On the date as specified in the related Intercreditor Agreement,
with respect to the Companion Loans, the Companion Paying Agent shall make
withdrawals and payments from the Companion Distribution Account for each
Companion Loan in the following order of priority:
(i) to pay the Trustee or the Paying Agent or any of their
directors, officers, employees and agents, as the case may be, any amounts
payable or reimbursable to any such Person pursuant to Section 8.05, to
the extent any such amounts relate solely to the Loan Pair related to such
Companion Loan, and such amounts are to be paid by the related Companion
Holder pursuant to the related Intercreditor Agreement;
(ii) to pay to the Master Servicer any amounts deposited by the
Master Servicer in the Companion Distribution Account not required to be
deposited therein;
(iii) to pay all amounts remaining in the Companion Distribution
Account related to such Companion Loan to the related Companion Holder, in
accordance with the related Intercreditor Agreement; and
(iv) to clear and terminate the Companion Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
All distributions from the Companion Distribution Account required
hereunder shall be made by the Companion Paying Agent to the Companion Holder by
wire transfer in immediately available funds to the account of such Companion
Holder or an agent therefor appearing on the Companion Register on the related
Record Date (or, if no such account so appears or information relating thereto
is not provided at least five Business Days prior to the related Record Date, by
check sent by first class mail to the address of such Companion Holder or its
agent appearing on the Companion Register). Any such account shall be located at
a commercial bank in the United States.
Section 4.02 Statements to Certificateholders; CMSA Investor
Reporting Package (IRP)s; Grant of Power of Attorney. (a) On each Distribution
Date, the Paying Agent shall make available to the general public a statement
(substantially in the form set forth as Exhibit G hereto and based on the
information supplied to the Paying Agent in the related CMSA Investor Reporting
Package (IRP) in accordance with CMSA guidelines) as to the distributions made
on such Distribution Date (each, a "Statement to Certificateholders") which
shall include:
(i) the amount of the distribution on such Distribution Date to the
Holders of each Class of Certificates in reduction of the Certificate
Balance thereof;
(ii) the amount of the distribution on such Distribution Date to the
Holders of each Class of Certificates allocable to Distributable
Certificate Interest;
(iii) the aggregate amount of Advances made, with respect to the
pool of Mortgage Loans and with respect to each Loan Group, during the
period from, but not including, the previous Distribution Date to, and
including, such Distribution Date and details of P&I Advances as of the
P&I Advance Date;
(iv) the aggregate amount of compensation paid to the Trustee and
the Paying Agent and servicing compensation paid to the Master Servicer
and the Special Servicer with respect to the Due Period for such
Determination Date together with detailed calculations of servicing
compensation paid to Master Servicer and Special Servicer;
(v) the aggregate Stated Principal Balance of the Mortgage Loans and
any REO Loans, with respect to the pool of Mortgage Loans and with respect
to each Loan Group, outstanding immediately before and immediately after
such Distribution Date;
(vi) the number of loans, their aggregate principal balance,
weighted average remaining term to maturity and weighted average Mortgage
Rate of the Mortgage Loans, with respect to the pool of Mortgage Loans and
with respect to each Loan Group, as of the end of the related Due Period
for such Distribution Date;
(vii) the number and aggregate principal balance of Mortgage Loans
(A) delinquent 30-59 days, (B) delinquent 60-89 days, (C) delinquent 90
days or more, (D) current but specially serviced or in foreclosure but not
REO Property and (E) for which the related Mortgagor is subject to
oversight by a bankruptcy court;
(viii) the value of any REO Property included in the Trust Fund as
of the end of the related Determination Date for such Distribution Date,
based on the most recent Appraisal or valuation;
(ix) the Available Distribution Amount for such Distribution Date;
(x) the Accrued Certificate Interest in respect of such Class of
Certificates for such Distribution Date, separately identifying any
Certificate Deferred Interest for such Distribution Date allocated to such
Class of Certificates;
(xi) the amount of the distribution on such Distribution Date to the
Holders of such Class of Certificates allocable to (A) Yield Maintenance
Charges and (B) Excess Interest;
(xii) the Pass-Through Rate for such Class of Certificates for such
Distribution Date and the next succeeding Distribution Date;
(xiii) the Scheduled Principal Distribution Amount and the
Unscheduled Principal Distribution Amount for such Distribution Date, with
respect to the pool of Mortgage Loans and with respect to each Loan Group;
(xiv) the Certificate Balance or Notional Amount, as the case may
be, of each Class of Certificates immediately before and immediately after
such Distribution Date, separately identifying any reduction therein as a
result of the allocation of any Collateral Support Deficit on such
Distribution Date and the aggregate amount of all reductions as a result
of allocations of Collateral Support Deficits to date;
(xv) the Certificate Factor for each Class of Regular Certificates
immediately following such Distribution Date;
(xvi) the amount of any Appraisal Reductions effected in connection
with such Distribution Date on a loan-by-loan basis and the total
Appraisal Reduction effected in connection with such Distribution Date,
together with a detailed worksheet showing the calculation of each
Appraisal Reduction on a current and cumulative basis;
(xvii) the number and related Stated Principal Balance of any
Mortgage Loans extended or modified since the previous Determination Date
(or in the case of the first Distribution Date, as of the Cut-off Date) on
a loan-by-loan basis;
(xviii) the amount of any remaining Class Unpaid Interest Shortfall
for such Class as of such Distribution Date;
(xix) a loan-by-loan listing of each Mortgage Loan which was the
subject of a Principal Prepayment since the previous Determination Date
(or in the case of the first Distribution Date, as of the Cut-off Date)
and the amount and the type of Principal Prepayment occurring;
(xx) a loan-by-loan listing of each Mortgage Loan which was defeased
since the previous Determination Date (or in the case of the first
Distribution Date, as of the Cut-off Date);
(xxi) all deposits into, withdrawals from, and the balance of the
Interest Reserve Account on the P&I Advance Date;
(xxii) in the case of the Residual Certificates, the amount of any
distributions on such Certificates pursuant to Sections 4.01(a), (b) and
(d);
(xxiii) the amount of the distribution on such Distribution Date to
the Holders of such Class of Certificates in reimbursement of previously
allocated Collateral Support Deficit;
(xxiv) the aggregate unpaid principal balance of the Mortgage Loans
outstanding as of the close of business on the related Determination Date,
with respect to the pool of Mortgage Loans and with respect to each Loan
Group;
(xxv) with respect to any Mortgage Loan as to which a Liquidation
Event occurred since the previous Determination Date (or in the case of
the first Distribution Date, as of the Cut-off Date) or prior to the
related Determination Date (other than a payment in full), (A) the loan
number thereof, (B) the aggregate of all Liquidation Proceeds and other
amounts received in connection with such Liquidation Event (separately
identifying the portion thereof allocable to distributions on the
Certificates), and (C) the amount of any Collateral Support Deficit in
connection with such Liquidation Event;
(xxvi) with respect to any REO Property included in the Trust Fund
as to which a Final Recovery Determination was made during the related Due
Period or prior to the Determination Date, (A) the loan number of the
related Mortgage Loan, (B) the aggregate of all Liquidation Proceeds and
other amounts received in connection with such Final Recovery
Determination (separately identifying the portion thereof allocable to
distributions on the Certificates), and (C) the amount of any Collateral
Support Deficit in respect of the related REO Loan in connection with such
Final Recovery Determination;
(xxvii) the aggregate amount of interest on P&I Advances paid to the
Master Servicer and the Trustee since the previous Determination Date (or
in the case of the first Distribution Date, as of the Cut-off Date), with
respect to the pool of Mortgage Loans and with respect to each Loan Group;
(xxviii) the aggregate amount of interest on Servicing Advances paid
to the Master Servicer and the Trustee since the previous Determination
Date (or in the case of the first Distribution Date, as of the Cut-off
Date);
(xxix) the original and then current credit support levels for each
Class of Certificates;
(xxx) the original and then current ratings for each Class of
Regular Certificates;
(xxxi) the amount of the distribution on the Distribution Date to
the Holders of the Residual Certificates; and
(xxxii) the aggregate amount of Yield Maintenance Charges collected
since the previous Determination Date (or in the case of the first
Distribution Date, as of the Cut-off Date).
In the case of information furnished pursuant to clauses (i), (ii),
(x) and (xi) above, the amounts shall be expressed as a dollar amount in the
aggregate for all Certificates of each applicable Class and per Definitive
Certificate.
Within a reasonable period of time after the end of each calendar
year, the Paying Agent shall furnish to each Person who at any time during the
calendar year was a Holder of a Certificate, a statement containing the
information set forth in clauses (i), (ii) and (xi) above as to the applicable
Class, aggregated for such calendar year or applicable portion thereof during
which such person was a Certificateholder, together with such other information
as the Paying Agent deems necessary or desirable, or that a Certificateholder or
Certificate Owner reasonably requests, to enable Certificateholders to prepare
their tax returns for such calendar year. Such obligation of the Paying Agent
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Paying Agent pursuant to any
requirements of the Code as from time to time are in force.
On each Distribution Date, the Paying Agent shall make available to
the general public via its website initially located at "xxx.xxxxxxxx.xxx" (i)
the related Statement to Certificateholders, (ii) the CMSA Loan Periodic Update
File, the CMSA Loan Setup File, the CMSA Bond Level File, the CMSA Collateral
Summary File, the CMSA Property File and (iii) as a convenience to the general
public (and not in furtherance of the distribution thereof under the securities
laws), the prospectus supplement, the prospectus, and this Agreement.
The Paying Agent shall make available the Statement to
Certificateholders through its home page on the Internet. The Paying Agent
hereby acknowledges and agrees that its home page as of the date hereof is
located at "xxx.xxxxxxxx.xxx" on the world wide web. In addition, if the
Depositor so directs the Paying Agent, and on terms acceptable to the Paying
Agent, the Paying Agent shall make certain other information and reports related
to the Mortgage Loans available through its internet website.
The Paying Agent shall make available to the Companion Holders all
reports via its Internet Website that the Paying Agent has made available to
Certificateholders under this Agreement.
In addition, on each Distribution Date, the Paying Agent shall make
available, to any Privileged Person via its website, each of the "surveillance
reports" identified as such in the definition of "CMSA Investor Reporting
Package" (the cost of the annual surveillance fees to the Rating Agencies shall
be paid by the Master Servicer pursuant to Section 3.01(i) hereof), eight
supplemental reports and the CMSA Operating Statement Analysis Report and CMSA
NOI Adjusted Worksheets and seven CMSA data files, the Realized Loss Report and
the CMSA Advance Recovery Report to the extent delivered by the Master Servicer
pursuant to this Agreement and the Trustee's Exception Report as updated from
time to time to the extent delivered to the Paying Agent.
The Paying Agent makes no representations or warranties as to the
accuracy or completeness of any report, document or other information made
available on its Internet website and assumes no responsibility therefor. In
addition, the Paying Agent may disclaim responsibility for any information
distributed by it for which it is not the original source.
In connection with providing access to the Paying Agent's Internet
website, the Paying Agent may require registration and the acceptance of a
disclaimer. The Paying Agent shall not be liable for the dissemination of
information in accordance herewith. Questions regarding the Paying Agent's
Internet website can be directed to the Paying Agent's CMBS customer service
desk at (000) 000-0000.
The Master Servicer may, at its sole cost and expense, make
available by electronic media, bulletin board service or Internet website (in
addition to making information available as provided herein) any reports or
other information the Master Servicer is required or permitted to provide to any
party to this Agreement, the Rating Agencies or any Certificateholder or
prospective Certificateholder to the extent such action does not conflict with
the terms of this Agreement, the terms of the Mortgage Loans or applicable law.
Notwithstanding this paragraph, the availability of such information or reports
on the Internet or similar electronic media shall not be deemed to satisfy any
specific delivery requirements in this Agreement except as set forth herein. In
connection with providing access to the Master Servicer's Internet website, the
Master Servicer shall take reasonable measures to ensure that only such parties
listed above may access such information including, without limitation,
requiring registration, a confidentiality agreement and acceptance of a
disclaimer. The Master Servicer shall not be liable for dissemination of this
information in accordance with this Agreement, provided that such information
otherwise meets the requirements set forth herein with respect to the form and
substance of such information or reports. The Master Servicer shall be entitled
to attach to any report provided pursuant to this subsection, any reasonable
disclaimer with respect to information provided, or any assumptions required to
be made by such report. Notwithstanding anything herein to the contrary, the
Master Servicer may, at its sole cost and expense, make available by electronic
media, bulletin board service or Internet website any reports or other
information the Master Servicer is required or permitted to provide to any
Mortgagor with respect to such Mortgagor's Mortgage Loan to the extent such
action does not conflict with the terms of this Agreement, the terms of the
Mortgage Loans or applicable law.
(b) The Special Servicer shall from time to time (and, in any event,
as may be reasonably required by the Master Servicer) provide the Master
Servicer with such information in its possession regarding the Specially
Serviced Mortgage Loans and REO Properties as may be necessary for the Master
Servicer to prepare each report and any supplemental information to be provided
by the Master Servicer to the Paying Agent. Neither the Paying Agent nor the
Depositor shall have any obligation to recompute, verify or recalculate the
information provided thereto by the Master Servicer. Unless the Paying Agent has
actual knowledge that any report or file received from the Master Servicer
contains erroneous information, the Paying Agent is authorized to rely thereon
in calculating and making distributions to Certificateholders in accordance with
Section 4.01, preparing the statements to Certificateholders required by Section
4.02(a) and allocating Collateral Support Deficit to the Certificates in
accordance with Section 4.04.
Notwithstanding the foregoing, the failure of the Master Servicer or
Special Servicer to disclose any information otherwise required to be disclosed
pursuant to this Section 4.02(b) or Section 4.02(c) shall not constitute a
breach of this Section 4.02(b) or of Section 4.02(c) to the extent the Master
Servicer or the Special Servicer so fails because such disclosure, in the
reasonable belief of the Master Servicer or the Special Servicer, as the case
may be, would violate any applicable law or any provision of a Mortgage Loan
document prohibiting disclosure of information with respect to the Mortgage
Loans or the Mortgaged Properties. The Master Servicer or the Special Servicer
may affix to any information provided by it any disclaimer it deems appropriate
in its reasonable discretion (without suggesting liability on the part of any
other party hereto).
(c) As soon as reasonably practicable, upon the written request of
and at the expense of any Certificateholder, the Paying Agent shall provide the
requesting Certificateholder with such information that is in the Paying Agent's
possession or can reasonably be obtained by the Paying Agent as is requested by
such Certificateholder, for purposes of satisfying applicable reporting
requirements under Rule 144A under the Securities Act. Neither the Certificate
Registrar, the Paying Agent nor the Trustee shall have any responsibility for
the sufficiency under Rule 144A or any other securities laws of any available
information so furnished to any person including any prospective purchaser of a
Certificate or any interest therein, nor for the content or accuracy of any
information so furnished which was prepared or delivered to them by another.
(d) The information to which any Certificateholder is entitled is
limited to the information gathered and provided to the Certificateholder by the
parties hereto pursuant to this Agreement and by acceptance of any Certificate,
each Certificateholder agrees that except as specifically provided herein, no
Certificateholder shall contact any Mortgagor directly with respect to any
Mortgage Loan.
(e) (i) The Paying Agent, the Master Servicer and the Special
Servicer shall reasonably cooperate with the Depositor in connection with the
Trust's satisfying the reporting requirements under the Exchange Act. The Paying
Agent shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for
similar securities as required by the Exchange Act and the Rules and Regulations
of the Commission thereunder, and the Paying Agent shall file (via the
Commission's Electronic Data Gathering and Retrieval System) such forms on
behalf of the Depositor. The Paying Agent shall deliver a draft of each such
form to be filed to the Depositor for its review and execution no later than 5
Business Days prior to the filing deadline applicable to each such report and
the Depositor shall deliver each such executed form to the Paying Agent no later
than 2 Business Days prior to the filing deadline applicable to each such
report. Alternatively, the Depositor may deliver to the Paying Agent manually
signed copies of a power of attorney meeting the requirements of Item 601(b)(24)
of Regulation S-K under the Securities Act, and certified copies of a resolution
of the Depositor's board of directors authorizing such power of attorney, each
to be filed with each Form 8-K, in which case the Paying Agent shall sign such
Forms 8-K on behalf of the Depositor. In the event that the Paying Agent signs
the Forms 8-K on behalf of the Depositor pursuant to such powers of attorney,
the Paying Agent shall deliver a draft of each such Form 8-K to the Depositor no
later than 2 Business Days prior to the filing deadline applicable to such
report.
(ii) Each Form 8-K shall be filed by the Paying Agent within 15 days
after each Distribution Date, including a copy of the Statement to the
Certificateholders for such Distribution Date as an exhibit thereto. Prior
to March 30th of each year (or such earlier date as may be required by the
Exchange Act and the Rules and Regulations of the Commission), the Paying
Agent shall file a Form 10-K, in substance as required by applicable law
or applicable Commission staff's interpretations. Such Form 10-K shall
include as exhibits the Master Servicer's and the Special Servicer's
annual statement of compliance described under Section 3.13 and the
accountant's report described under Section 3.14. If they are not timely
delivered, the Paying Agent shall file an amended Form 10-K including such
documents as exhibits reasonably promptly after they are delivered to the
Paying Agent. The Paying Agent shall have no liability with respect to any
failure to properly prepare or file such periodic reports resulting from
or relating to the Paying Agent's inability or failure to obtain any
information not resulting from its own negligence, willful misconduct or
bad faith. The Form 10-K shall also include a certification in the form
attached hereto as Exhibit Q (the "Certification") (or in such other form
as required by the Rules and Regulations of the Commission), which shall
be signed by the senior officer of the Depositor in charge of
securitization.
(iii) The Paying Agent shall sign a certification (in the form
attached hereto as Exhibit S-1 or in such other form as may be appropriate
or necessary and as may be agreed upon by the Paying Agent and Depositor
as a result of changes promulgated by the Commission in the Certification
required to be filed with the Form 10-K, which are applicable to the
Trust) for the benefit of the Depositor and its officers, directors and
Affiliates (provided, however, that the Paying Agent shall not undertake
an analysis of the accountant's report attached as an exhibit to the Form
10-K), the Master Servicer shall sign a certification (in the form
attached hereto as Exhibit S-2 or in such other form as may be appropriate
or necessary and as may be agreed upon by the Master Servicer and
Depositor as a result of changes promulgated by the Commission in the
Certification required to be filed with the Form 10-K, which are
applicable to the Trust) and the Special Servicer shall sign a
certification (in the form attached hereto as Exhibit S-3 or in such other
form as may be appropriate or necessary and as may be agreed upon by the
Special Servicer and Depositor as a result of changes promulgated by the
Commission in the Certification required to be filed with the Form 10-K,
which are applicable to the Trust), in each case, for the benefit of the
Depositor, the Paying Agent and their officers, directors and Affiliates
by March 15th of each year beginning in 2006 (or if not a Business Day,
the immediately preceding Business Day). The Certification attached hereto
as Exhibit Q shall be delivered by the Depositor to the Paying Agent for
filing by March 20th of each year beginning in 2006 (or if not a Business
Day, the immediately preceding Business Day). In addition, (i) the Paying
Agent shall indemnify and hold harmless the Depositor and its officers,
directors and Affiliates from and against any losses, damages, penalties,
fines, forfeitures, reasonable and necessary legal fees and related costs,
judgments and other costs and expenses arising out of or based upon a
breach of the Paying Agent's obligations under this Section 4.02(e) or the
Paying Agent's negligence, bad faith or willful misconduct in connection
therewith, and (ii) the Master Servicer and Special Servicer shall each
severally and not jointly indemnify and hold harmless the Depositor, the
Paying Agent and their respective officers, directors and Affiliates from
and against any losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgments and other costs and
expenses arising out of or based upon a breach of the Master Servicer's or
Special Servicer's obligations of the Master Servicer or the Special
Servicer, as the case may be, under this Section 4.02(e) or the
negligence, bad faith or willful misconduct of the Master Servicer or the
Special Servicer, as the case may be, in connection therewith. If the
indemnification provided for herein is unavailable or insufficient to hold
harmless the Depositor, then (i) the Paying Agent agrees that it shall
contribute to the amount paid or payable to the Depositor as a result of
the losses, claims, damages or liabilities of the Depositor in such
proportion as is appropriate to reflect the relative fault of the
Depositor on the one hand and the Paying Agent on the other in connection
with a breach of the Paying Agent's obligations under this Section 4.02(e)
or the Paying Agent's negligence, bad faith or willful misconduct in
connection therewith, (ii) the Master Servicer agrees that it shall
contribute to the amount paid or payable by the Depositor as a result of
the losses, claims, damages or liabilities of the Depositor in such
proportion as is appropriate to reflect the relative fault of the
Depositor on the one hand and the Master Servicer on the other in
connection with a breach of the Master Servicer's obligations under this
Section 4.02(e) or the Master Servicer's negligence, bad faith or willful
misconduct in connection therewith and (iii) the Special Servicer agrees
that it shall contribute to the amount paid or payable by the Depositor as
a result of the losses, claims, damages or liabilities of the Depositor in
such proportion as is appropriate to reflect the relative fault of the
Depositor on the one hand and the Special Servicer on the other in
connection with a breach of the Special Servicer's obligations under this
Section 4.02(e) or the Special Servicer's negligence, bad faith or willful
misconduct in connection therewith.
(iv) Upon any filing with the Commission, the Paying Agent shall
promptly deliver to the Depositor a copy of any such executed report,
statement or information, along with evidence of such filing via the
Commission's Electronic Data Gathering and Retrieval System, and shall
provide notice of such filing to the Master Servicer and Special Servicer.
(v) Prior to January 30 of the first year in which the Paying Agent
is able to do so under applicable law, the Paying Agent shall file a Form
15 Suspension Notification with respect to the Trust after which time no
Form 8-K or Form 10-K will be filed unless otherwise required by the
Exchange Act. The Paying Agent shall provide prompt written notice to the
Depositor of the filing of such Form 15 and a copy thereof.
Section 4.03 P&I Advances. (a) On or before 4:00 p.m., New York City
time, on each P&I Advance Date, the Master Servicer shall either (i) remit to
the Paying Agent for deposit into the Lower-Tier Distribution Account from its
own funds an amount equal to the aggregate amount of P&I Advances, if any, to be
made in respect of the related Distribution Date, (ii) apply amounts held in the
Certificate Account, for future distribution to Certificateholders in subsequent
months in discharge of any such obligation to make P&I Advances or (iii) make
P&I Advances in the form of any combination of (i) and (ii) aggregating the
total amount of P&I Advances to be made. Any amounts held in the Certificate
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 Certificate Account on or before the next
succeeding P&I Advance Date (to the extent not previously replaced through the
deposit of Late Collections of the delinquent principal and/or interest in
respect of which such P&I Advances were made). The Master Servicer shall notify
the Paying Agent of (i) the aggregate amount of P&I Advances for a Distribution
Date and (ii) the amount of any Nonrecoverable P&I Advances for such
Distribution Date, on or before 2 Business Days prior to such Distribution Date.
If the Master Servicer fails to make a required P&I Advance by 4:00 p.m., New
York City time, on any P&I Advance Date, the Trustee shall make such P&I Advance
pursuant to Section 7.05 by noon, New York City time, on the related
Distribution Date, in each case unless the Master Servicer shall have cured such
failure (and provided written notice of such cure to the Trustee and the Paying
Agent) by 11:00 a.m. on such Distribution Date. In the event that the Master
Servicer fails to make a required P&I Advance hereunder, the Paying Agent shall
notify the Trustee of such circumstances by 4:30 p.m. (New York City time) on
the related P&I Advance Date.
(b) Subject to Sections 4.03(c) and (e) below, the amount of P&I
Advances to be made by the Master Servicer with respect to any Distribution Date
and each Mortgage Loan shall be equal to: (i) the Monthly Payments (net of
related Servicing Fees, and in the case of the Universal Hotel Portfolio
Mortgage Loan, the Universal Hotel Portfolio servicing fees payable under this
Agreement) other than Balloon Payments, that were due during the related Due
Period and delinquent as of the close of business on the Business Day preceding
the related P&I Advance Date and (ii) with respect to each Mortgage Loan as to
which the related Balloon Payment was due during or prior to the related Due
Period and was delinquent as of the end of the related Due Period (including any
REO Loan as to which the Balloon Payment would have been past due), an amount
equal to the Assumed Scheduled Payment therefor. Subject to subsection (c)
below, the obligation of the Master Servicer to make such P&I Advances is
mandatory, and with respect to any Mortgage Loan or REO Loan, shall continue
until the Distribution Date on which the proceeds, if any, received in
connection with a Liquidation Event or the disposition of the REO Property, as
the case may be, with respect thereto are to be distributed. No P&I Advances
shall be made with respect to a Companion Loan.
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made hereunder if such P&I Advance would, if made,
constitute a Nonrecoverable P&I Advance. With respect to each Pari Passu Loan,
the Master Servicer will be required to make its determination that it has made
a P&I Advance on such Pari Passu Loan that is a Nonrecoverable Advance or that
any proposed P&I Advance would, if made, constitute a Nonrecoverable Advance
with respect to such Pari Passu Loan independently of any determination made by
any Other Servicer under the related Other Pooling and Servicing Agreement in
respect of the related Pari Passu Serviced Companion Loan (in connection with
each Universal Hotel Portfolio Companion Note, following its deposit into a
securitization trust created under the related Other Pooling and Servicing
Agreement), and the Other Servicer shall make its own determination that it has
made a P&I Advance that is a Nonrecoverable Advance (as defined in such Other
Pooling and Servicing Agreement) or that any proposed P&I Advance, if made,
would constitute a Nonrecoverable Advance (as defined in such Other Pooling and
Servicing Agreement) with respect to the Pari Passu Serviced Companion Loan
included in such Loan Pair in accordance with the Other Pooling and Servicing
Agreement. If the Master Servicer or Special Servicer determines that a proposed
P&I Advance with respect to a Pari Passu Loan, if made, or any outstanding P&I
Advance with respect to a Pari Passu Loan previously made, would be, or is, as
applicable, a Nonrecoverable Advance, the Master Servicer shall provide the
related Other Servicer written notice of such determination within one Business
Day of the date of such determination. If the Master Servicer receives written
notice from an Other Servicer that it has determined, by making a determination
of non-recoverability under the Other Pooling and Servicing Agreement, with
respect to the related Pari Passu Serviced Companion Loan that any proposed
advance under such Other Pooling and Servicing Agreement that is similar to a
P&I Advance would be, or any outstanding advance under such Other Pooling and
Servicing Agreement that is similar to a P&I Advance is, a nonrecoverable
advance, then such determination shall be binding on the Certificateholders and
none of the Master Servicer or the Trustee shall make any additional P&I
Advances with respect to the related Pari Passu Loan unless the Master Servicer
has consulted with the Other Servicer and they agree that circumstances with
respect to such Loan Pair have changed such that a proposed future P&I Advance
or an advance under the Other Pooling and Servicing Agreement that is similar to
a P&I Advance would not be a Nonrecoverable Advance or a nonrecoverable advance,
as the case may be. Notwithstanding the foregoing, the Master Servicer or the
Trustee shall continue to have the discretion provided in this Agreement to
determine that any future P&I Advance or outstanding P&I Advance would be, or
is, as applicable, a Nonrecoverable Advance.
(d) In connection with the recovery of any P&I Advance out of the
Certificate Account, pursuant to Section 3.05(a), the Master Servicer shall be
entitled to pay the Trustee and itself (in that order of priority) as the case
may be out of any amounts then on deposit in the Certificate Account, interest
at the Reimbursement Rate in effect from time to time, accrued on the amount of
such P&I Advance from the date made to but not including the date of
reimbursement; provided, however, that no interest will accrue on any P&I
Advance (i) made with respect to a Mortgage Loan until after the related Due
Date has passed and any applicable grace period has expired or (ii) if the
related Monthly Payment is received after the Determination Date but on or prior
to the related P&I Advance Date. The Master Servicer shall reimburse itself
and/or the Trustee, as the case may be, for any outstanding P&I Advance, subject
to Section 3.19 of this Agreement, as soon as practicably possible after funds
available for such purpose are deposited in the Certificate Account.
(e) Notwithstanding the foregoing, (i) neither the Master Servicer
nor the Trustee shall make an advance for Excess Interest, Yield Maintenance
Charges, Default Interest or Penalty Charges and (ii) if an Appraisal Reduction
has been made with respect to any Mortgage Loan then in the event of subsequent
delinquencies thereon, the interest portion of the P&I Advance in respect of
such Mortgage Loan for the related Distribution Date shall be reduced (it being
herein acknowledged that there shall be no reduction in the principal portion of
such P&I Advance) to equal the product of (x) the amount of the interest portion
of such P&I Advance for such Mortgage Loan for such Distribution Date without
regard to this subsection (ii), and (y) a fraction, expressed as a percentage,
the numerator of which is equal to the Stated Principal Balance of such Mortgage
Loan immediately prior to such Distribution Date, net of the related Appraisal
Reduction, if any, and the denominator of which is equal to the Stated Principal
Balance of such Mortgage Loan immediately prior to such Distribution Date. For
purposes of the immediately preceding sentence, the Monthly Payment due on the
Maturity Date for a Balloon Mortgage Loan will be the Assumed Scheduled Payment
for the related Distribution Date.
(f) In no event shall either the Master Servicer or the Trustee be
required to make a P&I Advance with respect to any Companion Loan.
Section 4.04 Allocation of Collateral Support Deficit. (a) On each
Distribution Date, immediately following the distributions to be made on such
date pursuant to Section 4.01 and the allocation of Certificate Deferred
Interest pursuant to Section 4.06, the Paying Agent shall calculate the amount,
if any, by which (i) the aggregate Stated Principal Balance (for purposes of
this calculation only, not giving effect to any reductions of the Stated
Principal Balance for payments of principal collected on the Mortgage Loans that
were used to reimburse any Workout-Delayed Reimbursement Amounts pursuant to
Section 3.05(a)(v) to the extent such Workout-Delayed Reimbursement Amounts are
not otherwise determined to be Nonrecoverable Advances) of the Mortgage Loans
and any REO Loans, expected to be outstanding immediately following such
Distribution Date, is less than (ii) the then aggregate Certificate Balance of
the Regular Certificates after giving effect to distributions of principal on
such Distribution Date and the allocation of Certificate Deferred Interest
pursuant to Section 4.06 (any such deficit, the "Collateral Support Deficit").
Any allocation of Collateral Support Deficit to a Class of Regular Certificates
shall be made by reducing the Certificate Balance thereof by the amount so
allocated. Any Collateral Support Deficit allocated to a Class of Regular
Certificates shall be allocated among the respective Certificates of such Class
in proportion to the Percentage Interests evidenced thereby. The allocation of
Collateral Support Deficit shall constitute an allocation of losses and other
shortfalls experienced by the Trust Fund. Reimbursement of previously allocated
Collateral Support Deficit will not constitute distributions of principal for
any purpose and will not result in an additional reduction in the Certificate
Balance of the Class of Certificates in respect of which any such reimbursement
is made. To the extent any Nonrecoverable Advances (plus interest thereon) that
were reimbursed from principal collections on the Mortgage Loans and previously
resulted in a reduction of the Principal Distribution Amount, Loan Group 1
Principal Distribution Amount or Loan Group 2 Principal Distribution Amount are
subsequently recovered on the related Mortgage Loan, the amount of such recovery
will be added to the Certificate Balance of the Class or Classes of Certificates
that previously were allocated Collateral Support Deficit, in sequential order,
in each case up to the amount of the unreimbursed Collateral Support Deficit
allocated to such Class of Certificates.
(b) On each Distribution Date, the Certificate Balances of the
Regular Certificates will be reduced without distribution, as a write-off to the
extent of any Collateral Support Deficit, if any, allocable to such Certificates
with respect to such Distribution Date. Any such write-off shall be allocated
first to the Class NR Certificates; second to the Class O Certificates; third to
the Class N Certificates; fourth to the Class M Certificates; fifth to the Class
L Certificates; sixth to the Class K Certificates; seventh to the Class J
Certificates; eighth to the Class H Certificates; ninth to the Class G
Certificates, tenth to the Class F Certificates, eleventh to the Class E
Certificates, twelfth to the Class D Certificates, thirteenth to the Class C
Certificates, fourteenth to the Class B Certificates, fifteenth to the Class A-J
Certificates, and sixteenth to the Class A-1 Certificates, the Class A-2
Certificates, the Class A-3 Certificates, the Class A-4A Certificates, the Class
A-4B Certificates, the Class A-SB Certificates and the Class A-1A Certificates,
pro rata (based upon their respective Certificate Balances), until the remaining
Certificate Balances of such Classes of Certificates have been reduced to zero;
provided that any Collateral Support Deficit amounts allocated hereunder to the
Class A-4A and the Class A-4B Certificates will be allocated first to the Class
A-4B Certificates and then to the Class A-4A Certificates.
(c) With respect to any Distribution Date, any Collateral Support
Deficit allocated to a Class of Certificates pursuant to Section 4.04(b) with
respect to such Distribution Date shall reduce the Lower-Tier Principal Amount
of the Related Uncertificated Lower-Tier Interest with respect thereto as a
write-off (in the case of (i) the Class A-1 Certificates, first, to the Class
LA-1-1 Uncertificated Interest, second, to the Class LA-1-2 Uncertificated
Interest, third, to the Class LA-1-3 Uncertificated Interest, and fourth, to the
Class LA-1-4 Uncertificated Interest, in each case, until reduced to zero, (ii)
the Class A-1A Certificates, first, to the Class LA-1A-1 Uncertificated
Interest, second, to the Class LA-1A-2 Uncertificated Interest, third, to the
Class LA-1A-3 Uncertificated Interest, fourth, to the Class LA-1A-4
Uncertificated Interest, fifth, to the Class LA-1A-5 Uncertificated Interest,
sixth, to the Class LA-1A-6 Uncertificated Interest, seventh, to the Class
LA-1A-7 Uncertificated Interest, eighth, to the Class LA-1A-8 Uncertificated
Interest, ninth, to the Class LA-1A-9 Uncertificated Interest, tenth, to the
Class LA-1A-10 Uncertificated Interest, eleventh, to the Class LA-1A-11
Uncertificated Interest, twelfth, to the Class LA-1A-12 Uncertificated Interest,
thirteenth, to the Class LA-1A-13 Uncertificated Interest, fourteenth, to the
Class LA-1A-14 Uncertificated Interest, and fifteenth, to the Class LA-1A-15
Uncertificated Interest, in each case, until reduced to zero, (iii) the Class
A-2 Certificates, first, to the Class LA-2-1 Uncertificated Interest, second, to
the Class LA-2-2 Uncertificated Interest, third, to the Class LA-2-3
Uncertificated Interest, and fourth, to the Class LA-2-4 Uncertificated
Interest, in each case, until reduced to zero, (iv) the Class A-3 Certificates,
first, to the Class LA-3-1 Uncertificated Interest, second, to the Class LA-3-2
Uncertificated Interest, third, to the Class LA-3-3 Uncertificated Interest,
fourth, to the Class LA-3-4 Uncertificated Interest, fifth, to the Class LA-3-5
Uncertificated Interest, sixth, to the Class LA-3-6 Uncertificated Interest and
seventh, to the Class LA-3-7 Uncertificated Interest, in each case, until
reduced to zero, (v) the Class A-4A Certificates, first, to the Class LA-4A-1
Uncertificated Interest, second, to the Class LA-4A-2 Uncertificated Interest,
and third, to the Class LA-4A-3 Uncertificated Interest, in each case, until
reduced to zero, (vi) the Class A-SB Certificates, first, to the Class LA-SB-1
Uncertificated Interest, second, to the Class LA-SB-2 Uncertificated Interest,
third, to the Class LA-SB-3 Uncertificated Interest, fourth, to the Class
LA-SB-4 Uncertificated Interest, fifth, to the Class LA-SB-5 Uncertificated
Interest, and sixth, to the Class LA-SB-6 Uncertificated Interest, in each case,
until reduced to zero, (vii) the Class E Certificates, first, to the Class LE-1
Uncertificated Interest, second, to the Class LE-2 Uncertificated Interest, in
each case, until reduced to zero, (viii) the Class F Certificates, first, to the
Class LF-1 Uncertificated Interest, second, to the Class LF-2 Uncertificated
Interest, and third, to the Class LF-3 Uncertificated Interest, in each case,
until reduced to zero, (ix) the Class G Certificates, first, to the Class LG-1
Uncertificated Interest, and second, to the Class LG-2 Uncertificated Interest,
in each case, until reduced to zero, (x) the Class H Certificates, first, to the
Class LH-1 Uncertificated Interest, second, to the Class LH-2 Uncertificated
Interest and third, to the Class LH-3 Uncertificated Interest, in each case,
until reduced to zero and (xi) the Class K Certificates, first, to the Class
LK-1 Uncertificated Interest, and second, to the Class LK-2 Uncertificated
Interest, in each case until reduced to zero.
Section 4.05 Appraisal Reductions. The aggregate Appraisal Reduction
will be allocated by the Paying Agent on each Distribution Date, only for
purposes of determining the amount of P&I Advances with respect to the related
Mortgage Loan, to the Certificate Balance of the Class NR, Class O, Class N,
Class M, Class L, Class K, Class J, Class H, Class G, Class F, Class E, Class D,
Class C and Class B Certificates and the Class A-J Certificates, pro rata, in
that order, up to the amount of their respective Certificate Balances. On any
Distribution Date, an Appraisal Reduction that otherwise would be allocated to a
Class of Certificates will be allocated to the next most subordinate Class to
the extent that the Certificate Balance on such Distribution Date for such Class
of Certificates (prior to taking the Appraisal Reduction into account) is less
than the Appraisal Reduction for such Distribution Date.
With respect to any AB Mortgage Loan, Appraisal Reductions will be
calculated based on the aggregate outstanding principal balance of such AB
Mortgage Loan and the related Companion Loan. Any resulting Appraisal Reductions
will be allocated to the related Companion Loan up to the principal amount of
such Companion Loan prior to being allocated to the AB Mortgage Loan.
Section 4.06 Certificate Deferred Interest. (a) On each Distribution
Date, the amount of interest distributable to a Class of Certificates (other
than the Class X Certificates) shall be reduced by an amount equal to the amount
of Mortgage Deferred Interest for all Mortgage Loans for the Due Dates occurring
in the related Due Period allocated to such Class of Certificates, such Mortgage
Deferred Interest to be allocated first, to the Class NR Certificates; second,
to the Class O Certificates; third, to the Class N Certificates; fourth, to the
Class M Certificates; fifth, to the Class L Certificates; sixth, to the Class K
Certificates; seventh, to the Class J Certificates; eighth, to the Class H
Certificates; ninth, to the Class G Certificates, tenth, to the Class F
Certificates, eleventh, to the Class E Certificates, twelfth, to the Class D
Certificates, thirteenth, to the Class C Certificates, fourteenth, to the Class
B Certificates, fifteenth, to the Class A-J Certificates, and sixteenth, pro
rata (based upon Accrued Certificate Interest) to the Class A-1, Class A-1A,
Class A-2, Class A-3, Class A-4A, Class A-4B and Class A-SB Certificates in each
case up to the respective Accrued Certificate Interest for each such Class of
Certificates for such Distribution Date; provided that Mortgage Deferred
Interest for the Class A-4A and Class A-4B Certificates will be allocated first
to the Class A-4B Certificates, and then to the Class A-4A Certificates.
(b) On each Distribution Date, the Certificate Balances of the Class
A-1 Certificates, Class A-2 Certificates, Class A-3 Certificates, Class A-4A
Certificates, Class A-4B Certificates, Class A-SB Certificates, Class A-1A
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F Certificates,
Class G Certificates, Class H Certificates, Class J Certificates, Class K
Certificates, Class L Certificates, Class M Certificates, Class N Certificates,
Class O Certificates and Class NR Certificates shall be increased by the amount
of the Certificate Deferred Interest allocated to such Class of Certificates on
such Distribution Date pursuant to Section 4.06(a) above. On each Distribution
Date the Certificate Deferred Interest allocated to the Related Uncertificated
Lower-Tier Interest (in the case of (i) the Class A-1 Certificates, first, to
the Class LA-1-1 Uncertificated Interest, second, to the Class LA-1-2
Uncertificated Interest, third, to the Class LA-1-3 Uncertificated Interest, and
fourth, to the Class LA-1-4 Uncertificated Interest, in each case, until reduced
to zero, (ii) the Class A-1A Certificates, first, to the Class LA-1A-1
Uncertificated Interest, second, to the Class LA-1A-2 Uncertificated Interest,
third, to the Class LA-1A-3 Uncertificated Interest, fourth, to the Class
LA-1A-4 Uncertificated Interest, fifth, to the Class LA-1A-5 Uncertificated
Interest, sixth, to the Class LA-1A-6 Uncertificated Interest, seventh, to the
Class LA-1A-7 Uncertificated Interest, eighth, to the Class LA-1A-8
Uncertificated Interest, ninth, to the Class LA-1A-9 Uncertificated Interest,
tenth, to the Class LA-1A-10 Uncertificated Interest, eleventh, to the Class
LA-1A-11 Uncertificated Interest, twelfth, to the Class LA-1A-12 Uncertificated
Interest, thirteenth, to the Class LA-1A-13 Uncertificated Interest, fourteenth,
to the Class LA-1A-14 Uncertificated Interest, and fifteenth, to the Class
LA-1A-15 Uncertificated Interest, in each case, until reduced to zero, (iii) the
Class A-2 Certificates, first, to the Class LA-2-1 Uncertificated Interest,
second, to the Class LA-2-2 Uncertificated Interest, third, to the Class LA-2-3
Uncertificated Interest, and fourth, to the Class LA-2-4 Uncertificated
Interest, in each case, until reduced to zero, (iv) the Class A-3 Certificates,
first, to the Class LA-3-1 Uncertificated Interest, second, to the Class LA-3-2
Uncertificated Interest, third, to the Class LA-3-3 Uncertificated Interest,
fourth, to the Class LA-3-4 Uncertificated Interest, fifth, to the Class LA-3-5
Uncertificated Interest, sixth, to the Class LA-3-6 Uncertificated Interest and
seventh, to the Class LA-3-7 Uncertificated Interest, in each case, until
reduced to zero, (v) the Class A-4A Certificates, first, to the Class LA-4A-1
Uncertificated Interest, second, to the Class LA-4A-2 Uncertificated Interest
and third, to the Class LA-4A-3 Uncertificated Interest, in each case, until
reduced to zero, (vi) the Class A-SB Certificates, first, to the Class LA-SB-1
Uncertificated Interest, second, to the Class LA-SB-2 Uncertificated Interest,
third, to the Class LA-SB-3 Uncertificated Interest, fourth, to the Class
LA-SB-4 Uncertificated Interest, fifth, to the Class LA-SB-5 Uncertificated
Interest, and sixth, to the Class LA-SB-6 Uncertificated Interest, in each case,
until reduced to zero, (vii) the Class D Certificates, first to the Class LD-1
Uncertificated Interest, second to the Class LD-2 Uncertificated Interest,
third, to the Class LD-3 Uncertificated Interest, and fourth, to the Class LD-4
Uncertificated Interest, in each case, until reduced to zero, (viii) the Class E
Certificates, first, to the Class LE-1 Uncertificated Interest and second, to
the Class LE-2 Uncertificated Interest, in each case, until reduced to zero,
(ix) the Class F Certificates, first, to the Class LF-1 Uncertificated Interest,
second, to the Class LF-2 Uncertificated Interest and third, to the Class LF-3
Uncertificated Interest, in each case, until reduced to zero, (x) the Class G
Certificates, first, to the Class LG-1 Uncertificated Interest and second, to
the Class LG-2 Uncertificated Interest, in each case, until reduced to zero,
(xi) the Class H Certificates, first, to the Class LH-1 Uncertificated Interest,
second, to the Class LH-2 Uncertificated Interest and third, to the Class LH-3
Uncertificated Interest, in each case, until reduced to zero and (xii) the Class
K Certificates, first, to the Class LK-1 Uncertificated Interest, and second, to
the Class LK-2 Uncertificated Interest, in each case, until reduced to zero.
(c) With respect to any Distribution Date, any Certificate Deferred
Interest with respect to such Distribution Date allocated pursuant to Section
4.06(a) to a Class of Certificates shall be allocated in reduction of the amount
of interest distributable to the Related Uncertificated Lower-Tier Interest with
respect thereto (in the case of (i) the Class A-1 Certificates, first, to the
Class LA-1-1 Uncertificated Interest, second, to the Class LA-1-2 Uncertificated
Interest, third, to the Class LA-1-3 Uncertificated Interest, and fourth, to the
Class LA-1-4 Uncertificated Interest, in each case, until reduced to zero, (ii)
the Class A-1A Certificates, first, to the Class LA-1A-1 Uncertificated
Interest, second, to the Class LA-1A-2 Uncertificated Interest, third, to the
Class LA-1A-3 Uncertificated Interest, fourth, to the Class LA-1A-4
Uncertificated Interest, fifth, to the Class LA-1A-5 Uncertificated Interest,
sixth, to the Class LA-1A-6 Uncertificated Interest, seventh, to the Class
LA-1A-7 Uncertificated Interest, eighth, to the Class LA-1A-8 Uncertificated
Interest, ninth, to the Class LA-1A-9 Uncertificated Interest, tenth, to the
Class LA-1A-10 Uncertificated Interest, eleventh, to the Class LA-1A-11
Uncertificated Interest, twelfth, to the Class LA-1A-12 Uncertificated Interest,
thirteenth, to the Class LA-1A-13 Uncertificated Interest, fourteenth, to the
Class LA-1A-14 Uncertificated Interest, and fifteenth, to the Class LA-1A-15
Uncertificated Interest, in each case, until reduced to zero, (iii) the Class
A-2 Certificates, first, to the Class LA-2-1 Uncertificated Interest, second, to
the Class LA-2-2 Uncertificated Interest, third, to the Class LA-2-3
Uncertificated Interest, and fourth, to the Class LA-2-4 Uncertificated
Interest, in each case, until reduced to zero, (iv) the Class A-3 Certificates,
first, to the Class LA-3-1 Uncertificated Interest, second, to the Class LA-3-2
Uncertificated Interest, third, to the Class LA-3-3 Uncertificated Interest,
fourth, to the Class LA-3-4 Uncertificated Interest, fifth, to the Class LA-3-5
Uncertificated Interest, sixth, to the Class LA-3-6 Uncertificated Interest and
seventh, to the Class LA-3-7 Uncertificated Interest, in each case, until
reduced to zero, (v) the Class A-4A Certificates, first, to the Class LA-4A-1
Uncertificated Interest, second, to the Class LA-4A-2 Uncertificated Interest
and third, to the Class LA-4A-3 Uncertificated Interest, in each case, until
reduced to zero, (vi) the Class A-SB Certificates, first, to the Class LA-SB-1
Uncertificated Interest, second, to the Class LA-SB-2 Uncertificated Interest,
third, to the Class LA-SB-3 Uncertificated Interest, fourth, to the Class
LA-SB-4 Uncertificated Interest, fifth, to the Class LA-SB-5 Uncertificated
Interest, and sixth, to the Class LA-SB-6 Uncertificated Interest, in each case,
until reduced to zero, (vii) the Class D Certificates, first, to the Class LD-1
Uncertificated Interest, second to the Class LD-2 Uncertificated Interest,
third, to the Class LD-3 Uncertificated Interest, and fourth, to the Class LD-4
Uncertificated Interest, in each case, until reduced to zero, (viii) the Class E
Certificates, first, to the Class LE-1 Uncertificated Interest and second, to
the Class LE-2 Uncertificated Interest, in each case, until reduced to zero,
(ix) the Class F Certificates, first, to the Class LF-1 Uncertificated Interest,
second, to the Class LF-2 Uncertificated Interest, and third, to the Class LF-3
Uncertificated Interest, in each case, until reduced to zero, (x) the Class G
Certificates, first, to the Class LG-1 Uncertificated Interest and second, to
the Class LG-2 Uncertificated Interest, in each case, until reduced to zero,
(xi) the Class H Certificates, first, to the Class LH-1 Uncertificated Interest,
second, to the Class LH-2 Uncertificated Interest and third, to the Class LH-3
Uncertificated Interest, in each case, until reduced to zero and (xii) the Class
K Certificates, first, to the Class LK-1 Uncertificated Interest, and second, to
the Class LK-2 Uncertificated Interest, in each case, until reduced to zero. On
each Distribution Date, to the extent provided in Section 4.06(b) with respect
to the Related Certificates, Certificate Deferred Interest will be added to the
Lower Tier Principal Amount of the Uncertificated Lower Tier Interests in the
same priority as the interest thereon was reduced pursuant to the preceding
sentence.
Section 4.07 Grantor Trust Reporting. The parties intend that the
portion of the Trust Fund constituting the Grantor Trust, which consists of the
Excess Interest allocable to the Mortgage Loans, proceeds thereof held in the
Certificate Account pertaining to the Excess Interest allocable to the Mortgage
Loans and the Excess Interest Distribution Account shall be conducted so as to
qualify such portion as, a "grantor trust" under subpart E, Part I of subchapter
J of the Code, and the provisions hereof shall be interpreted consistently with
this intention. In furtherance of such intention, the Paying Agent shall (A)
file, or cause to be filed, Internal Revenue Service Form 1041 or such other
form as may be applicable with the Internal Revenue Service and (B) furnish, or
cause to be furnished, to the Class S Certificateholders, their allocable share
of income with respect to Excess Interest accrued or received, as applicable.
[End of Article IV]
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates. The Certificates will be
substantially in the respective forms annexed hereto as Exhibits A-1 through and
including A-27. The Certificates will be issuable in registered form only;
provided, however, that in accordance with Section 5.03 beneficial ownership
interests in the Regular Certificates shall initially be held and transferred
through the book-entry facilities of the Depository. The Class S, Class R and
Class LR Certificates will each be issuable in one or more registered,
definitive physical certificates (each, a "Definitive Certificate")
substantially in the form of Certificates of each Class and with such applicable
legends as are set forth in the Exhibits hereto corresponding to such Class.
Each Certificate will share ratably in all rights of the related Class. The
Class X Certificates will be issuable only in minimum Denominations of
authorized initial Notional Amount of not less than $1,000,000 and in integral
multiples of $1.00 in excess thereof. The Offered Certificates (other than the
Class X-2 Certificates) will be issuable only in minimum Denominations of
authorized initial Certificate Balance of not less than $10,000, and in integral
multiples of $1.00 in excess thereof. The Non-Registered Certificates (other
than the Class X-1, the Class S and the Residual Certificates) will be issuable
in minimum Denominations of authorized initial Certificate Balance of not less
than $250,000, and in integral multiples of $1.00 in excess thereof. If the
Original Certificate Balance or initial Notional Amount, as applicable, of any
Class does not equal an integral multiple of $1.00, then a single additional
Certificate of such Class may be issued in a minimum denomination of authorized
initial Certificate Balance or initial Notional Amount, as applicable, that
includes the excess of (i) the Original Certificate Balance or initial Notional
Amount, as applicable, of such Class over (ii) the largest integral multiple of
$1.00 that does not exceed such amount. The Class S, Class R and Class LR
Certificates will be issuable only in one or more Definitive Certificates in
denominations representing Percentage Interests of not less than 20%. With
respect to any Certificate or any beneficial interest in a Certificate, the
"Denomination" thereof shall be (i) the amount (a) set forth on the face thereof
or, (b) set forth on a schedule attached thereto or (c) in the case of any
beneficial interest in a Book-Entry Certificate, the interest of the related
Certificate Owner in the applicable Class of Certificates as reflected on the
books and records of the Depository or related Participants, as applicable, (ii)
expressed in terms of initial Certificate Balance or initial Notional Amount, as
applicable, and (iii) be in an authorized denomination, as set forth above. The
Book-Entry Certificates will be issued as one or more certificates registered in
the name of a nominee designated by the Depository, and Certificate Owners will
hold interests in the Book-Entry Certificates through the book-entry facilities
of the Depository in the minimum Denominations and aggregate Denominations as
set forth in the above. No Certificate Owner of a Book-Entry Certificate of any
Class thereof will be entitled to receive a Definitive Certificate representing
its interest in such Class, except as provided in Section 5.03 herein. Unless
and until Definitive Certificates are issued in respect of a Class of Book-Entry
Certificates, beneficial ownership interests in such Class of Certificates will
be maintained and transferred on the book-entry records of the Depository and
Depository Participants, and all references to actions by Holders of such Class
of Certificates will refer to action taken by the Depository upon instructions
received from the related registered Holders of Certificates through the
Depository Participants in accordance with the Depository's procedures and,
except as otherwise set forth herein, all references herein to payments,
notices, reports and statements to Holders of such Class of Certificates will
refer to payments, notices, reports and statements to the Depository or its
nominee as the registered Holder thereof, for distribution to the related
registered Holders of Certificates through the Depository Participants in
accordance with the Depository's procedures.
(a) The Certificates shall be executed by manual or facsimile
signature on behalf of the Certificate Registrar by an authorized signatory.
Certificates bearing the manual or facsimile signatures of individuals who were
at any time the authorized signatories of the Certificate Registrar shall be
entitled to all benefits under this Agreement, subject to the following
sentence, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, however, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Authenticating Agent by manual signature, and such certificate of authentication
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication. LaSalle Bank
National Association, located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000, is hereby initially appointed Authenticating Agent with power to
act on the Trustee's behalf in the authentication and delivery of the
Certificates in connection with transfers and exchanges as herein provided. If
LaSalle Bank National Association, located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000, is removed as Paying Agent, then LaSalle Bank
National Association shall be terminated as Authenticating Agent. If the
Authenticating Agent is terminated, the Trustee shall appoint a successor
authenticating agent, which may be the Trustee or an Affiliate thereof.
(b) Any of the Certificates may be issued with appropriate
insertions, omissions, substitutions and variations, and may have imprinted or
otherwise reproduced thereon such legend or legends, not inconsistent with the
provisions of this Agreement, as may be required to comply with any law or with
rules or regulations pursuant thereto, or with the rules of any securities
market in which the Certificates are admitted to trading, or to conform to
general usage.
Section 5.02 Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be maintained at
the office of the Certificate Registrar a Certificate Register in which, subject
to such reasonable regulations as the Certificate Registrar may prescribe, the
Certificate Registrar shall provide for the registration of Certificates and of
transfers and exchanges of Certificates as herein provided. LaSalle Bank
National Association, located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000, is hereby initially appointed Certificate Registrar for the
purpose of registering Certificates and transfers and exchanges of Certificates
as herein provided. The Certificate Registrar may appoint, by a written
instrument delivered to the Depositor, the Trustee, the Paying Agent, the
Special Servicer and the Master Servicer, any other bank or trust company to act
as Certificate Registrar under such conditions as the predecessor certificate
registrar may prescribe, provided that the predecessor certificate registrar
shall not be relieved of any of its duties or responsibilities hereunder by
reason of such appointment. If LaSalle Bank National Association resigns or is
removed as Paying Agent, the Trustee shall immediately succeed to its
predecessor's duties as Certificate Registrar. The Depositor, the Trustee, the
Master Servicer and the Special Servicer shall have the right to inspect the
Certificate Register or to obtain a copy thereof at all reasonable times, and to
rely conclusively upon a certificate of the Certificate Registrar as to the
information set forth in the Certificate Register. The names and addresses of
all Certificateholders and the names and addresses of the transferees of any
Certificates shall be registered in the Certificate Register; provided, however,
in no event shall the Certificate Registrar be required to maintain in the
Certificate Register the names of Certificate Owners. The Person in whose name
any Certificate is so registered shall be deemed and treated as the sole owner
and Holder thereof for all purposes of this Agreement and the Certificate
Registrar, the Master Servicer, the Paying Agent, the Trustee, the Special
Servicer and any agent of any of them shall not be affected by any notice or
knowledge to the contrary. A Definitive Certificate is transferable or
exchangeable only upon the surrender of such Certificate to the Certificate
Registrar at its office maintained at LaSalle Bank National Association, as
Certificate Registrar, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx
00000, Attention: Global Securities and Trust Services Group, X.X. Xxxxxx
2005-LDP3 (the "Registrar Office"), together with an assignment and transfer
(executed by the Holder or his duly authorized attorney). Subject to the
requirements of Sections 5.02(b), (c) and (d), the Certificate Registrar shall
execute and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in
Denominations of a like aggregate Denomination as the Definitive Certificate
being surrendered. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Section 5.02(e). Each Certificate surrendered for
registration of transfer shall be canceled, and the Certificate Registrar shall
hold such canceled Certificates in accordance with its standard procedures.
(b) No transfer of any Non-Registered Certificate shall be made
unless that transfer is made pursuant to an effective registration statement
under the Securities Act, and effective registration or qualification under
applicable state securities laws, or is made in a transaction which does not
require such registration or qualification. If a transfer (other than one by the
Depositor to an Affiliate thereof or by the Initial Purchasers to Cadim TACH
inc.) is to be made in reliance upon an exemption from the Securities Act, and
under the applicable state securities laws, then either:
(i) Rule 144A Book-Entry Certificate to Regulation S Book-Entry
Certificate During the Restricted Period. If, during the Restricted
Period, a Certificate Owner of an interest in a Rule 144A Book-Entry
Certificate wishes at any time to transfer its beneficial interest in such
Rule 144A Book-Entry Certificate to a Person who wishes to take delivery
thereof in the form of a beneficial interest in a Regulation S Book-Entry
Certificate, such Certificate Owner may, in addition to complying with all
applicable rules and procedures of the Depository and Clearstream or
Euroclear applicable to transfers by their respective participants (the
"Applicable Procedures"), transfer or cause the transfer of such
beneficial interest for an equivalent beneficial interest in the
Regulation S Book-Entry Certificate only upon compliance with the
provisions of this Section 5.02(b)(i). Upon receipt by the Certificate
Registrar at its Registrar Office of (1) written instructions given in
accordance with the Applicable Procedures from a Depository Participant
directing the Certificate Registrar to credit or cause to be credited to
another specified Depository Participant's account a beneficial interest
in the Regulation S Book-Entry Certificate in an amount equal to the
Denomination of the beneficial interest in the Rule 144A Book-Entry
Certificate to be transferred, (2) a written order given in accordance
with the Applicable Procedures containing information regarding the
account of the Depository Participant (and the Euroclear or Clearstream
account, as the case may be) to be credited with, and the account of the
Depository Participant to be debited for, such beneficial interest, and
(3) a certificate in the form of Exhibit K hereto given by the Certificate
Owner that is transferring such interest, the Certificate Registrar, as
custodian of the Book-Entry Certificates shall reduce the Denomination of
the Rule 144A Book-Entry Certificate by the Denomination of the beneficial
interest in the Rule 144A Book-Entry Certificate to be so transferred and,
concurrently with such reduction, increase the Denomination of the
Regulation S Book-Entry Certificate by the Denomination of the beneficial
interest in the Rule 144A Book-Entry Certificate to be so transferred, and
credit or cause to be credited to the account of the Person specified in
such instructions (who shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
beneficial interest in the Regulation S Book-Entry Certificate having a
Denomination equal to the amount by which the Denomination of the Rule
144A Book-Entry Certificate was reduced upon such transfer.
(ii) Rule 144A Book-Entry Certificate to Regulation S Book-Entry
Certificate After the Restricted Period. If, after the Restricted Period,
a Certificate Owner of an interest in a Rule 144A Book-Entry Certificate
wishes at any time to transfer its beneficial interest in such Rule 144A
Book-Entry Certificate to a Person who wishes to take delivery thereof in
the form of a beneficial interest in a Regulation S Book-Entry
Certificate, such holder may, in addition to complying with all Applicable
Procedures, transfer or cause the transfer of such beneficial interest for
an equivalent beneficial interest in a Regulation S Book-Entry Certificate
only upon compliance with the provisions of this Section 5.02(b)(ii). Upon
receipt by the Certificate Registrar at its Registrar Office of (1)
written instructions given in accordance with the Applicable Procedures
from a Depository Participant directing the Certificate Registrar to
credit or cause to be credited to another specified Depository
Participant's account a beneficial interest in the Regulation S Book-Entry
Certificate in an amount equal to the Denomination of the beneficial
interest in the Rule 144A Book-Entry Certificate to be transferred, (2) a
written order given in accordance with the Applicable Procedures
containing information regarding the account of the Depository Participant
(and, in the case of a transfer pursuant to and in accordance with
Regulation S, the Euroclear or Clearstream account, as the case may be) to
be credited with, and the account of the Depository Participant to be
debited for, such beneficial interest, and (3) a certificate in the form
of Exhibit N hereto given by the Certificate Owner that is transferring
such interest, the Certificate Registrar as custodian of the Book-Entry
Certificates shall reduce the Denomination of the Rule 144A Book-Entry
Certificate by the aggregate Denomination of the beneficial interest in
the Rule 144A Book-Entry Certificate to be so transferred and,
concurrently with such reduction, increase the Denomination of the
Regulation S Book-Entry Certificate by the aggregate Denomination of the
beneficial interest in the Rule 144A Book-Entry Certificate to be so
transferred, and credit or cause to be credited to the account of the
Person specified in such instructions (who shall be a Depository
Participant acting for or on behalf of Euroclear or Clearstream, or both,
as the case may be) a beneficial interest in the Regulation S Book-Entry
Certificate having a Denomination equal to the amount by which the
Denomination of the Rule 144A Book-Entry Certificate was reduced upon such
transfer.
(iii) Regulation S Book-Entry Certificate to Rule 144A Book-Entry
Certificate. If the Certificate Owner of an interest in a Regulation S
Book-Entry Certificate wishes at any time to transfer its beneficial
interest in such Regulation S Book-Entry Certificate to a Person who
wishes to take delivery thereof in the form of a beneficial interest in
the Rule 144A Book-Entry Certificate, such holder may, in addition to
complying with all Applicable Procedures, transfer or cause the transfer
of such beneficial interest for an equivalent beneficial interest in the
Rule 144A Book-Entry Certificate only upon compliance with the provisions
of this Section 5.2(b)(iii). Upon receipt by the Certificate Registrar at
its Registrar Office of (1) written instructions given in accordance with
the Applicable Procedures from a Depository Participant directing the
Certificate Registrar to credit or cause to be credited to another
specified Depository Participant's account a beneficial interest in the
Rule 144A Book-Entry Certificate in an amount equal to the Denomination of
the beneficial interest in the Regulation S Book-Entry Certificate to be
transferred, (2) a written order given in accordance with the Applicable
Procedures containing information regarding the account of the Depository
Participant to be credited with, and the account of the Depository
Participant (or, if such account is held for Euroclear or Clearstream, the
Euroclear or Clearstream account, as the case may be) to be debited for
such beneficial interest, and (3) with respect to a transfer of a
beneficial interest in the Regulation S Book-Entry Certificate for a
beneficial interest in the related Rule 144A Book-Entry Certificate (i)
during the Restricted Period, a certificate in the form of Exhibit O
hereto given by the Certificate Owner, or (ii) after the Restricted
Period, an Investment Representation Letter in the form of Exhibit C
attached hereto from the transferee to the effect that such transferee is
a Qualified Institutional Buyer (an "Investment Representation Letter"),
the Certificate Registrar, as custodian of the Book-Entry Certificates,
shall reduce the Denomination of the Regulation S Book-Entry Certificate
by the Denomination of the beneficial interest in the Regulation S
Book-Entry Certificate to be transferred, and, concurrently with such
reduction, increase the Denomination of the Rule 144A Book-Entry
Certificate by the aggregate Denomination of the beneficial interest in
the Regulation S Book-Entry Certificate to be so transferred, and credit
or cause to be credited to the account of the Person specified in such
instructions (who shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
beneficial interest in the Rule 144A Book-Entry Certificate having a
Denomination equal to the amount by which the Denomination of the
Regulation S Book-Entry Certificate was reduced upon such transfer.
(iv) Transfers Within Regulation S Book-Entry Certificates During
Restricted Period. If, during the Restricted Period, the Certificate Owner
of an interest in a Regulation S Book-Entry Certificate wishes at any time
to transfer its beneficial interest in such Certificate to a Person who
wishes to take delivery thereof in the form of a Regulation S Book-Entry
Certificate, such Certificate Owner may transfer or cause the transfer of
such beneficial interest for an equivalent beneficial interest in such
Regulation S Book-Entry Certificate only upon compliance with the
provisions of this Section 5.02(b)(iv) and all Applicable Procedures. Upon
receipt by the Certificate Registrar at its Registrar Office of (1)
written instructions given in accordance with the Applicable Procedures
from a Depository Participant directing the Certificate Registrar to
credit or cause to be credited to another specified Depository
Participant's account a beneficial interest in such Regulation S
Book-Entry Certificate in an amount equal to the Denomination of the
beneficial interest to be transferred, (2) a written order given in
accordance with the Applicable Procedures containing information regarding
the account of the Depository Participant to be credited with, and the
account of the Depository Participant (or, if such account is held for
Euroclear or Clearstream, the Euroclear or Clearstream account, as the
case may be) to be debited for, such beneficial interest and (3) a
certificate in the form of Exhibit P hereto given by the transferee, the
Certificate Registrar, as custodian of the Book-Entry Certificates, shall
debit the account of the transferring Regulation S Certificateholder and
credit or cause to be credited to the account of the Person specified in
such instructions (who shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
beneficial interest in the Regulation S Book-Entry Certificate having a
Denomination equal to the amount specified in such instructions by which
the account to be debited was reduced upon such transfer.
(v) Transfers of Book-Entry Certificates to Definitive Certificates.
Any and all transfers from a Book-Entry Certificate to a transferee
wishing to take delivery in the form of a Definitive Certificate will
require the transferee to take delivery subject to the restrictions on the
transfer of such Definitive Certificate described on the face of such
Certificate, and such transferee agrees that it will transfer such
Definitive Certificate only as provided therein and herein. No such
transfer shall be made and the Certificate Registrar shall not register
any such transfer unless such transfer is made in accordance with this
Section 5.02(b)(v).
(A) Transfers of a beneficial interest in a Book-Entry
Certificate to an Institutional Accredited Investor will require
delivery of such Certificate to the transferee in the form of a
Definitive Certificate and the Certificate Registrar shall register
such transfer only if prior to the transfer (i) two years have
expired after the later of the Closing Date or the last date on
which the Depositor or any Affiliate thereof held such Certificate,
or (ii) such transferee furnishes to the Certificate Registrar (1)
an Investment Representation Letter in the form of Exhibit C
attached hereto to the effect that the transfer is being made to an
Institutional Accredited Investor in accordance with an applicable
exemption under the Act, and (2) if required by the Certificate
Registrar, an opinion of counsel acceptable to the Certificate
Registrar that such transfer is in compliance with the Act.
(B) Transfers of a beneficial interest in a Book-Entry
Certificate to a Regulation S Investor wishing to take delivery in
the form of a Definitive Certificate will be registered by the
Certificate Registrar only if the transferor has provided the
Certificate Registrar with a certificate in the form of Exhibit P
attached hereto. Transfers of a beneficial interest in a Book-Entry
Certificate to a Qualified Institutional Buyer wishing to take
delivery in the form of a Definitive Certificate will be registered
by the Certificate Registrar only if such transferee furnishes to
the Certificate Registrar an Investment Representation Letter in the
form of Exhibit C attached hereto to the effect that the transfer is
being made to a Qualified Institutional Buyer in accordance with
Rule 144A under the Act.
(C) Notwithstanding the foregoing, no transfer of a beneficial
interest in a Regulation S Book-Entry Certificate to a Definitive
Certificate pursuant to subparagraph (B) above shall be made prior
to the expiration of the Restricted Period. Upon acceptance for
exchange or transfer of a beneficial interest in a Book-Entry
Certificate for a Definitive Certificate, as provided herein, the
Certificate Registrar shall endorse on the schedule affixed to the
related Book-Entry Certificate (or on a continuation of such
schedule affixed to such Book-Entry Certificate and made a part
thereof) an appropriate notation evidencing the date of such
exchange or transfer and a decrease in the Denomination of such
Book-Entry Certificate equal to the Denomination of such Definitive
Certificate issued in exchange therefor or upon transfer thereof.
(vi) Transfers of Definitive Certificates to the Book-Entry
Certificates. If a Holder of a Definitive Certificate (other than a Class
S Certificate) wishes at any time to transfer such Certificate to a Person
who wishes to take delivery thereof in the form of a beneficial interest
in the related Regulation S Book-Entry Certificate or the related Rule
144A Book-Entry Certificate, such transfer may be effected only in
accordance with the Applicable Procedures, and this Section 5.02(b)(vi).
Upon receipt by the Certificate Registrar at the Registrar Office of (1)
the Definitive Certificate to be transferred with an assignment and
transfer pursuant to Section 5.02(d), (2) written instructions given in
accordance with the Applicable Procedures from a Depository Participant
directing the Certificate Registrar to credit or cause to be credited to
another specified Depository Participant's account a beneficial interest
in such Regulation S Book-Entry Certificate or such Rule 144A Book-Entry
Certificate, as the case may be, in an amount equal to the Denomination of
the Definitive Certificate to be so transferred, (3) a written order given
in accordance with the Applicable Procedures containing information
regarding the account of the Depository Participant (and, in the case of
any transfer pursuant to Regulation S, the Euroclear or Clearstream
account, as the case may be) to be credited with such beneficial interest,
and (4) (x) if delivery is to be taken in the form of a beneficial
interest in the Regulation S Book-Entry Certificate, a Regulation S
Transfer Certificate from the transferor or (y) an Investment
Representation Letter from the transferee to the effect that such
transferee is a Qualified Institutional Buyer, if delivery is to be taken
in the form of a beneficial interest in the Rule 144A Book-Entry
Certificate, the Certificate Registrar shall cancel such Definitive
Certificate, execute and deliver a new Definitive Certificate for the
Denomination of the Definitive Certificate not so transferred, registered
in the name of the Holder, and the Certificate Registrar, as custodian of
the Book-Entry Certificates, shall increase the Denomination of the
Regulation S Book-Entry Certificate or the Rule 144A Book-Entry
Certificate, as the case may be, by the Denomination of the Definitive
Certificate to be so transferred, and credit or cause to be credited to
the account of the Person specified in such instructions (who, in the case
of any increase in the Regulation S Book-Entry Certificate during the
Restricted Period, shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
corresponding Denomination of the Rule 144A Book-Entry Certificate or the
Regulation S Book-Entry Certificate, as the case may be.
It is the intent of the foregoing that under no circumstances may an
Institutional Accredited Investor that is not a Qualified Institutional Buyer
take delivery in the form of a beneficial interest in a Book-Entry Certificate.
(vii) Transfers of Definitive Certificates to Definitive
Certificates. Any and all transfers from a Definitive Certificate to a
transferee wishing to take delivery in the form of a Definitive
Certificate will require the transferee to take delivery subject to the
restrictions on the transfer of such Definitive Certificate described on
the face of such Certificate, and such transferee agrees that it will
transfer such Definitive Certificate only as provided therein and herein.
No such transfer shall be made and the Certificate Registrar shall not
register any such transfer unless such transfer is made in accordance with
procedures substantially consistent with those set forth in Section
5.02(b)(v), provided, however, that any such transfer of a Class S
Certificate shall be made only to a transferee that is a Qualified
Institutional Buyer.
(viii) An exchange of a beneficial interest in a Book-Entry
Certificate for a Definitive Certificate or Certificates, an exchange of a
Definitive Certificate or Certificates for a beneficial interest in the
Book-Entry Certificate and an exchange of a Definitive Certificate or
Certificates for another Definitive Certificate or Certificates (in each
case, whether or not such exchange is made in anticipation of subsequent
transfer, and in the case of the Book-Entry Certificates, so long as the
Book-Entry Certificates remain outstanding and are held by or on behalf of
the Depository), may be made only in accordance with this Section 5.02 and
in accordance with the rules of the Depository and Applicable Procedures.
Any purported or attempted transfer of a Non-Registered Certificate
in violation of the provisions of this Section 5.02(b) shall be null and void ab
initio and shall vest no rights in any purported transferee.
Unless the Non-Registered Certificates have been registered under
the Securities Act, each of the Non-Registered Certificates shall bear a legend
substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES
LAWS. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT
TO OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN
ACCORDANCE WITH ALL APPLICABLE STATE SECURITIES LAWS AND (A)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS THIS
CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C)
(OTHER THAN WITH RESPECT TO A CLASS S CERTIFICATE OR A RESIDUAL
CERTIFICATE) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (d) (OTHER THAN WITH RESPECT
TO A CLASS S CERTIFICATE OR A RESIDUAL CERTIFICATE) IN AN OFFSHORE
TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT OR (E) (OTHER THAN WITH
RESPECT TO A CLASS S CERTIFICATE OR A RESIDUAL CERTIFICATE) PURSUANT
TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE
COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE
REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
LAST PAGE OF THIS CERTIFICATE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT
PURCHASER OF THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN
INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN
TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT
REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED
INSTITUTIONAL BUYER OR (OTHER THAN WITH RESPECT TO A CLASS S
CERTIFICATE OR A RESIDUAL CERTIFICATE) AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL
IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A.
(c) With respect to the ERISA Restricted Certificates and the Class
S Certificates, no sale, transfer, pledge or other disposition of any such
Certificate shall be made unless the Certificate Registrar shall have received
either (i) a representation letter from the proposed purchaser or transferee of
such Certificate substantially in the form of Exhibit F attached hereto, to the
effect that such proposed purchaser or transferee is not (a) an employee benefit
plan subject to the fiduciary responsibility provisions of ERISA or a plan
subject to Section 4975 of the Code, or a governmental plan (as defined in
Section 3(32) of ERISA) or a church plan (as defined in Section 3(33) of ERISA)
for which no election has been made under Section 410(d) of the Code subject to
any federal, state or local law ("Similar Law") which is, to a material extent,
similar to the foregoing provisions of ERISA or the Code (each, a "Plan") or (b)
a person acting on behalf of or using the assets of any such Plan (including an
entity whose underlying assets include Plan assets by reason of investment in
the entity by such Plan and the application of Department of Labor Regulation
ss. 2510.3-101), other than, except in the case of the Class S Certificates, an
insurance company using the assets of its general account under circumstances
whereby the purchase and holding of such Certificates by such insurance company
would be exempt from the prohibited transaction provisions of ERISA and the Code
under Sections I and III of Prohibited Transaction Class Exemption 95-60 or (ii)
if such Certificate, other than a Class S Certificate, which may be held only by
a person not described in (a) or (b) above, is presented for registration in the
name of a purchaser or transferee that is any of the foregoing, an Opinion of
Counsel in form and substance satisfactory to the Certificate Registrar and the
Depositor to the effect that the acquisition and holding of such Certificate by
such purchaser or transferee will not constitute or result in a non-exempt
"prohibited transaction" within the meaning of ERISA, Section 4975 of the Code
or any Similar Law, and will not subject the Trustee, the Paying Agent, the
Certificate Registrar, the Master Servicer, the Special Servicer, the
Underwriters, the Initial Purchasers or the Depositor to any obligation or
liability (including obligations or liabilities under ERISA, Section 4975 of the
Code or any such Similar Law) in addition to those set forth in the Agreement.
The Certificate Registrar shall not register the sale, transfer, pledge or other
disposition of any ERISA Restricted Certificate or Class S Certificate unless
the Certificate Registrar has received either the representation letter
described in clause (i) above or in the case of an ERISA Restricted Certificate,
the Opinion of Counsel described in clause (ii) above. The costs of any of the
foregoing representation letters or Opinions of Counsel shall not be borne by
any of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Underwriters, the Initial Purchasers, the Certificate
Registrar or the Trust Fund. Each Certificate Owner of an ERISA Restricted
Certificate or Class S Certificate shall be deemed to represent that it is not a
Person specified in clauses (a) or (b) above. Any transfer, sale, pledge or
other disposition of any ERISA Restricted Certificates or Class S Certificates
that would constitute or result in a prohibited transaction under ERISA, Section
4975 of the Code or any Similar Law, or would otherwise violate the provisions
of this Section 5.02(c) shall be deemed absolutely null and void ab initio, to
the extent permitted under applicable law.
So long as any of the Class of Certificates remains outstanding, the
Master Servicer or the Special Servicer, as applicable, will make available, or
cause to be made available, upon request, to any Holder and any Person to whom
any such Certificate of any such Class of Certificates may be offered or sold,
transferred, pledged or otherwise disposed of by such Holder, information with
respect to the Master Servicer, the Special Servicer or the Mortgage Loans
necessary to the provision of an Opinion of Counsel described in this Section
5.02(c).
(i) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following
provisions and to have irrevocably authorized the Paying Agent under
clause (ii) below to deliver payments to a Person other than such Person.
The rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(A) (i) No Person holding or acquiring any Ownership Interest
in a Residual Certificate shall be a Disqualified Organization or
agent thereof (including a nominee, middleman or similar person) (an
"Agent"), a Plan or a Person acting on behalf of or investing the
assets of a Plan, including any entity whose underlying assets
include Plan assets by reason of investment in the entity by such
Plan and the application of Department of Labor Regulations ss.
2510.3-101 (such Plan or Person, an "ERISA Prohibited Holder") or a
Non-U.S. Person and (ii) each Person holding or acquiring any
Ownership Interest in a Residual Certificate shall be a Permitted
Transferee and in each case shall promptly notify the Master
Servicer, the Trustee and the Certificate Registrar of any change or
impending change to such status;
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Certificate Registrar shall
require delivery to it, and no Transfer of any Residual Certificate
shall be registered until the Certificate Registrar receives, an
affidavit substantially in the form attached hereto as Exhibit D-1
(a "Transfer Affidavit") from the proposed Transferee, in form and
substance satisfactory to the Certificate Registrar, representing
and warranting, among other things, that such Transferee is a
Permitted Transferee and is not a Disqualified Organization or Agent
thereof, an ERISA Prohibited Holder or a Non-U.S. Person, and that
it has reviewed the provisions of this Section 5.02(c) and agrees to
be bound by them;
(C) Notwithstanding the delivery of a Transfer Affidavit by a
proposed Transferee under clause (b) above, if the Certificate
Registrar has actual knowledge that the proposed Transferee is a
Disqualified Organization or Agent thereof, an ERISA Prohibited
Holder or a Non-U.S. Person or is not a Permitted Transferee, no
Transfer of an Ownership Interest in a Residual Certificate to such
proposed Transferee shall be effected; and
(D) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall agree (1) to require a Transfer
Affidavit from any prospective Transferee to whom such Person
attempts to transfer its Ownership Interest in such Residual
Certificate and (2) not to transfer its Ownership Interest in such
Residual Certificate unless it provides to the Certificate Registrar
a letter substantially in the form attached hereto as Exhibit D-2 (a
"Transferor Letter") certifying that, among other things, it has no
actual knowledge that such prospective Transferee is a Disqualified
Organization or Agent thereof, an ERISA Prohibited Holder or a
Non-U.S. Person.
(ii) If any purported Transferee shall become a Holder of a Residual
Certificate in violation of the provisions of this Section 5.02(c), then
the last preceding Holder of such Residual Certificate that was in
compliance with the provisions of this Section 5.02(c) shall be restored,
to the extent permitted by law, to all rights as Holder thereof
retroactive to the date of registration of such Transfer of such Residual
Certificate. None of the Trustee, the Master Servicer, the Authenticating
Agent and the Certificate Registrar shall be under any liability to any
Person for any registration of Transfer of a Residual Certificate that is
in fact not permitted by this Section 5.02(c) or for making any payments
due on such Certificate to the Holder thereof or for taking any other
action with respect to such Holder under the provisions of this Agreement;
provided, however, that the Certificate Registrar shall be under such
liability for a registration of Transfer of a Residual Certificate if it
has actual knowledge that the proposed Transferee is a Disqualified
Organization or Agent thereof, an ERISA Prohibited Holder or a Non-U.S.
Person in violation of Section 5.02(c)(i)(C) above or is not a Permitted
Transferee.
(iii) The Paying Agent shall make available to the Internal Revenue
Service and those Persons specified by the REMIC Provisions all
information in its possession and necessary to compute any tax imposed as
a result of the Transfer of an Ownership Interest in a Residual
Certificate to any Person who is a Disqualified Organization or Agent
thereof, including the information described in Treasury Regulations
Sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess
inclusions" of such Residual Certificate.
(d) Subject to the restrictions on transfer and exchange set forth
in this Section 5.02, the Holder of any Definitive Certificate may transfer or
exchange the same in whole or in part (with a Denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor certificate registrar or transfer agent
appointed by the Certificate Registrar, together with an instrument of
assignment or transfer (executed by the Holder or its duly authorized attorney),
in the case of transfer, and a written request for exchange in the case of
exchange. Subject to the restrictions on transfer set forth in this Section 5.02
and Applicable Procedures, any Certificate Owner owning a beneficial interest in
a Non-Registered Certificate may cause the Certificate Registrar to request that
the Depository exchange such Certificate Owner's beneficial interest in a
Book-Entry for a Definitive Certificate or Certificates. Following a proper
request for transfer or exchange, the Certificate Registrar shall, within 5
Business Days of such request if made at such Registrar Office, or within 10
Business Days if made at the office of a transfer agent (other than the
Certificate Registrar), execute and deliver at such Registrar Office or at the
office of such transfer agent, as the case may be, to the transferee (in the
case of transfer) or Holder (in the case of exchange) or send by first class
mail (at the risk of the transferee in the case of transfer or Holder in the
case of exchange) to such address as the transferee or Holder, as applicable,
may request, a Definitive Certificate or Certificates, as the case may require,
for a like aggregate Denomination and in such Denomination or Denominations as
may be requested. The presentation for transfer or exchange of any Definitive
Certificate shall not be valid unless made at the Registrar Office or at the
office of a transfer agent by the registered Holder in person, or by a duly
authorized attorney-in-fact. The Certificate Registrar may decline to accept any
request for an exchange or registration of transfer of any Certificate during
the period of 15 days preceding any Distribution Date.
(e) In the event a Responsible Officer of the Certificate Registrar
becomes aware that a Definitive Certificate (other than a Definitive Certificate
issued in exchange for a Certificate representing an interest in the Class A-1,
Class A-2, Class A-3, Class A-4A, Class A-4B, Class A-SB, Class A-J, Class B,
Class C, Class D or Class X-2 Certificates) or a beneficial interest in a
Book-Entry Certificate representing a Non-Registered Certificate is being held
by or for the benefit of a Person who is not an Eligible Investor, or that such
holding is unlawful under the laws of a relevant jurisdiction, then the
Certificate Registrar shall have the right to void such transfer, if permitted
under applicable law, or to require the investor to sell such Definitive
Certificate or beneficial interest in such Book-Entry Certificate to an Eligible
Investor within 14 days after notice of such determination and each
Certificateholder by its acceptance of a Certificate authorizes the Certificate
Registrar to take such action.
(f) The Certificate Registrar shall, upon written request, provide
an updated copy of the Certificate Register to the Trustee, the Master Servicer,
the Special Servicer, the Paying Agent and the Depositor.
(g) No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in this Section 5.02 except as provided below. In
connection with any transfer to an Institutional Accredited Investor, the
transferor shall reimburse the Trust Fund for any costs (including the cost of
the Certificate Registrar's counsel's review of the documents and any legal
opinions, submitted by the transferor or transferee to the Certificate Registrar
as provided herein) incurred by the Certificate Registrar in connection with
such transfer. With respect to any transfer or exchange of any Certificate, the
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer or exchange.
(h) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall hold such canceled Certificates in accordance with its standard
procedures.
Section 5.03 Book-Entry Certificates. (a) The Regular Certificates
shall initially be issued as one or more Certificates registered in the name of
the Depository or its nominee and, except as provided in subsection (c) below,
transfer of such Certificates may not be registered by the Certificate Registrar
unless such transfer is to a successor depository that agrees to hold such
Certificates for the respective Certificate Owners with Ownership Interests
therein. Such Certificate Owners shall hold and transfer their respective
Ownership Interests in and to such Certificates through the book-entry
facilities of the Depository and, except as provided in Section 5.02(d) above or
subsection (c) below, shall not be entitled to Definitive Certificates in
respect of such Ownership Interests. All transfers by Certificate Owners of
their respective Ownership Interests in the Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing such Certificate Owner. Each Depository
Participant shall only transfer the Ownership Interests in the Book-Entry
Certificates of Certificate Owners it represents or of brokerage firms for which
it acts as agent in accordance with the Depository's normal procedures.
(b) The Trustee, the Paying Agent, the Master Servicer, the Special
Servicer, the Depositor and the Certificate Registrar may for all purposes,
including the making of payments due on the Book-Entry Certificates, deal with
the Depository as the authorized representative of the Certificate Owners with
respect to such Certificates for the purposes of exercising the rights of
Certificateholders hereunder. The rights of Certificate Owners with respect to
the Book-Entry Certificates shall be limited to those established by law and
agreements between such Certificate Owners and the Depository Participants and
brokerage firms representing such Certificate Owners. Multiple requests and
directions from, and votes of, the Depository as Holder of the Book-Entry
Certificates with respect to any particular matter shall not be deemed
inconsistent if they are made with respect to different Certificate Owners. The
Paying Agent may establish a reasonable record date in connection with
solicitations of consents from or voting by Certificateholders and shall give
notice to the Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee, the Paying Agent
and the Certificate Registrar in writing that the Depository is no longer
willing or able to properly discharge its responsibilities with respect to the
Book-Entry Certificates and (B) the Depositor is unable to locate a qualified
successor, or (ii) the Depositor at its option advises the Trustee, the Paying
Agent and the Certificate Registrar in writing that it elects to terminate the
book-entry system through the Depository, the Paying Agent shall notify the
affected Certificate Owners, through the Depository with respect to all, any
Class or any portion of any Class of the Certificates or (iii) the Certificate
Registrar determines that Definitive Certificates are required in accordance
with the provisions of Section 5.03(e), of the occurrence of any such event and
of the availability of Definitive Certificates to Certificate Owners requesting
the same. Upon surrender to the Certificate Registrar of the Book-Entry
Certificates by the Depository or any custodian acting on behalf of the
Depository, accompanied by registration instructions from the Depository for
registration of transfer, the Certificate Registrar shall execute, and the
Authenticating Agent shall authenticate and deliver, within 5 Business Days of
such request if made at the Registrar Office, or within 10 Business Days if made
at the office of a transfer agent (other than the Certificate Registrar), the
Definitive Certificates to the Certificate Owners identified in such
instructions. None of the Depositor, the Master Servicer, the Trustee, the
Paying Agent, the Special Servicer, the Authenticating Agent and the Certificate
Registrar shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Certificates for purposes of evidencing
ownership of any Class of Certificates, the registered Holders of such
Definitive Certificates shall be recognized as Certificateholders hereunder and,
accordingly, shall be entitled directly to receive payments on, to exercise
Voting Rights with respect to, and to transfer and exchange such Definitive
Certificates.
(d) The Book-Entry Certificates (i) shall be delivered by the
Certificate Registrar to the Depository, or pursuant to the Depository's
instructions, and shall be registered in the name of Cede & Co. and (ii) shall
bear a legend substantially to the following effect:
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to
the Certificate Registrar for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
The Book-Entry Certificates may be deposited with such other
Depository as the Certificate Registrar may from time to time designate, and
shall bear such legend as may be appropriate.
(e) If the Trustee has instituted or if the Special Servicer or the
Master Servicer, on the Trustee's behalf, has been directed to institute any
judicial proceeding in a court to enforce the rights of the Certificateholders
under the Certificates, and the Trustee has been advised by counsel that in
connection with such proceeding it is necessary or appropriate for the Trustee
to obtain possession of all or any portion of the Certificates evidenced by
Book-Entry Certificates, the Trustee may in its sole discretion determine that
such Certificates shall no longer be represented by such Book-Entry
Certificates. In such event, the Certificate Registrar will execute, the
Authenticating Agent will authenticate and the Certificate Registrar will
deliver, in exchange for such Book-Entry Certificates, Definitive Certificates
in a Denomination equal to the aggregate Denomination of such Book-Entry
Certificates to the party so requesting such Definitive Certificates. In such
event, the Certificate Registrar shall notify the affected Certificate Owners
and make appropriate arrangements for the effectuation of the purpose of this
clause.
(f) Upon acceptance for exchange or transfer of a beneficial
interest in a Book-Entry Certificate for a Definitive Certificate, as provided
herein, the Certificate Registrar shall endorse on a schedule affixed to the
related Book-Entry Certificate (or on a continuation of such schedule affixed to
such Book-Entry Certificate and made a part thereof) an appropriate notation
evidencing the date of such exchange or transfer and a decrease in the
Denomination of such Book-Entry Certificate equal to the Denomination of such
Definitive Certificate issued in exchange therefor or upon transfer thereof.
(g) If a Holder of a Definitive Certificate (other than a Definitive
Certificate that is a Class S Certificate) wishes at any time to transfer such
Certificate to a Person who wishes to take delivery thereof in the form of a
beneficial interest in the Book-Entry Certificate, such transfer may be effected
only in accordance with Applicable Procedures, Section 5.02(b) and this Section
5.03(g). Upon receipt by the Certificate Registrar at the Registrar Office of
(i) the Definitive Certificate to be transferred with an assignment and transfer
pursuant to Section 5.02(a), and all required items pursuant to Section
5.02(b)(v), the Certificate Registrar shall cancel such Definitive Certificate,
execute and deliver a new Definitive Certificate for the Denomination of the
Definitive Certificate not so transferred, registered in the name of the Holder
or the Holder's transferee (as instructed by the Holder), and the Certificate
Registrar as custodian of the Book-Entry Certificates shall increase the
Denomination of the related Book-Entry Certificate by the Denomination of the
Definitive Certificate to be so transferred, and credit or cause to be credited
to the account of the Person specified in such instructions a corresponding
Denomination of such Book-Entry Certificate.
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates. If
(i) any mutilated Certificate is surrendered to the Certificate Registrar, or
the Certificate Registrar receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (ii) there is delivered to the
Trustee and the Certificate Registrar such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of actual
notice to the Trustee or the Certificate Registrar that such Certificate has
been acquired by a bona fide purchaser, the Certificate Registrar shall execute,
and the Authenticating Agent shall authenticate and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of the same Class and of like Percentage Interest. Upon the issuance
of any new Certificate under this Section, the Trustee and the Certificate
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee and the Certificate
Registrar) connected therewith. Any replacement Certificate issued pursuant to
this Section shall constitute complete and indefeasible evidence of ownership in
the Trust Fund, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
Section 5.05 Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Depositor, the Master Servicer,
the Special Servicer, the Paying Agent, the Trustee, the Certificate Registrar
and any agents of any of them may treat the person in whose name such
Certificate is registered as the owner of such Certificate for the purpose of
receiving distributions pursuant to Section 4.01 and for all other purposes
whatsoever, except as and to the extent provided in the definition of
"Certificateholder," and none of the Depositor, the Master Servicer, the Special
Servicer, the Paying Agent, the Trustee, the Certificate Registrar and any agent
of any of them shall be affected by notice to the contrary except as provided in
Section 5.02(d).
Section 5.06 Certificate Ownership Certification. To the extent that
under the terms of this Agreement, it is necessary to determine whether any
Person is a Certificate Owner, the Paying Agent shall make such determination
based on a certificate of such Person which shall be addressed to the Paying
Agent and shall specify, in reasonable detail satisfactory to the Paying Agent,
such Person's name and address, the Class and Certificate Balance or Notional
Amount of the Regular Certificate beneficially owned, and any intermediaries
through which such Person's interest in such Regular Certificate is held (any
such certification, other than one which the Paying Agent shall refuse to
recognize pursuant to the following procedures, a "Certificate Ownership
Certification"); provided, however, that the Paying Agent shall not knowingly
recognize such Person as a Certificate Owner if such Person, to the actual
knowledge of a Responsible Officer of such party, acquired its interest in a
Regular Certificate in violation of the transfer restrictions herein, or if such
Person's certification that it is a Certificate Owner is in direct conflict with
information obtained by the Paying Agent from the Depository or any Depository
Participant with respect to the identity of a Certificate Owner; provided,
however, that to the extent the Paying Agent is required to obtain such
Certificate Owner information from the Depository or any Depository Participant,
the Paying Agent shall be reimbursed for any cost or expense in obtaining such
information from the Distribution Account. The Paying Agent may conclusively
rely on such Certificate Ownership Certification. The Master Servicer will only
be required to acknowledge the status of any Person as a Certificateholder or
Certificate Owner to the extent that the Paying Agent, at the request of the
Master Servicer, identifies such Person as a Certificateholder or Certificate
Owner.
Section 5.07 Appointment of Paying Agent.
(a) LaSalle Bank National Association, located at 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, is hereby initially appointed
Paying Agent to act on the Trustee's behalf in accordance with the terms of this
Agreement. If the Paying Agent resigns or is terminated, the Trustee shall
appoint a successor Paying Agent which may be the Trustee or an Affiliate
thereof to fulfill the obligations of the Paying Agent hereunder which must be
(i) a corporation, national bank, national banking association or a trust
company, organized and doing business under the laws of any state or the United
States of America, authorized under such laws to exercise corporate trust powers
under this Agreement, having a combined capital and surplus of at least
$100,000,000 and subject to supervision or examination by federal or state
authority (ii) an institution insured by the Federal Deposit Insurance
Corporation and (iii) an institution whose long-term senior unsecured debt is
rated "A" by S&P and "A" by Xxxxx'x (or such entity as would not, as evidenced
in writing by such Rating Agency, result in the qualification, downgrading or
withdrawal of any of the ratings then assigned thereby to the Certificates).
(b) The Paying Agent may rely upon and shall be protected in acting
or refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, Appraisal, bond or other paper
or document reasonably believed by it to be genuine and to have been signed or
presented by the proper party or parties.
(c) The Paying Agent, at the expense of the Trust Fund (but only if
such amount constitutes "unanticipated expenses of the REMIC" within the meaning
of Treasury Regulations Section 1.860G-1(b)(3)(ii)), may consult with counsel
and the written advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance therewith.
(d) The Paying Agent shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion or rights or powers conferred upon it by
this Agreement.
(e) The Paying Agent may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys; provided, however, that the appointment of such agents or
attorneys shall not relieve the Paying Agent of its duties or obligations
hereunder.
(f) The Paying Agent shall not be responsible for any act or
omission of the Trustee, the Master Servicer or the Special Servicer or of the
Depositor.
[End of Article V]
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER,
THE SPECIAL SERVICER AND
THE DIRECTING CERTIFICATEHOLDER
Section 6.01 Liability of the Depositor, the Master Servicer and the
Special Servicer. The Depositor, the Master Servicer and the Special Servicer
shall be liable in accordance herewith only to the extent of the respective
obligations specifically imposed upon and undertaken by the Depositor, the
Master Servicer and the Special Servicer herein.
Section 6.02 Merger, Consolidation or Conversion of the Depositor,
the Master Servicer or the Special Servicer. (a) Subject to subsection (b)
below, the Depositor, the Master Servicer and the Special Servicer each will
keep in full effect its existence, rights and franchises as a corporation under
the laws of the jurisdiction of its incorporation or organization, and each will
obtain and preserve its qualification to do business as a foreign corporation in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement, the Certificates or
any of the Mortgage Loans and to perform its respective duties under this
Agreement.
(b) The Depositor, the Master Servicer and the Special Servicer each
may be merged or consolidated with or into any Person, or transfer all or
substantially all of its assets (which may be limited to all or substantially
all of its assets related to commercial mortgage loan servicing) to any Person,
in which case any Person resulting from any merger or consolidation to which the
Depositor, the Master Servicer or the Special Servicer shall be a party, or any
Person succeeding to the business of the Depositor, the Master Servicer or the
Special Servicer, shall be the successor of the Depositor, the Master Servicer
and the Special Servicer, as the case may be, hereunder, without the execution
or filing of any paper (other than an assumption agreement wherein the successor
shall agree to perform the obligations of and serve as the Depositor, the Master
Servicer or the Special Servicer, as the case may be, in accordance with the
terms of this Agreement) or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding; provided, however, that
such merger, consolidation or succession will not result in a withdrawal,
downgrading or qualification of the then-current ratings of the Classes of
Certificates that have been so rated (as evidenced by a letter to such effect
from each Rating Agency).
Section 6.03 Limitation on Liability of the Depositor, the Master
Servicer, the Special Servicer and Others. (a) None of the Depositor, the Master
Servicer, the Special Servicer and their respective Affiliates or any of the
directors, officers, employees or agents of any of the foregoing shall be under
any liability to the Trust or the Certificateholders or the Companion Holders
for any action taken or for refraining from the taking of any action in good
faith pursuant to this Agreement, or for errors in judgment; provided, however,
that this provision shall not protect the Depositor, the Master Servicer, the
Special Servicer and their respective Affiliates or any such Person against any
breach of warranties or representations made herein or any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith or negligence
in the performance of duties or by reason of negligent disregard of obligations
and duties hereunder. The Depositor, the Master Servicer and the Special
Servicer and their respective Affiliates and any director, officer, member,
manager, employee or agent of the Depositor, the Master Servicer or the Special
Servicer or their respective Affiliates may rely on any document of any kind
which, prima facie, is properly executed and submitted by any Person respecting
any matters arising hereunder. The Depositor, the Master Servicer, the Special
Servicer and their respective Affiliates and any director, officer, employee or
agent of any of the foregoing shall be indemnified and held harmless by the
Trust against any and all claims, losses, penalties, fines, forfeitures,
reasonable legal fees and related costs, judgments, and any other costs,
liabilities, fees and expenses incurred in connection with any legal action
(whether in equity or at law) or claim relating to this Agreement, the Mortgage
Loans, the Companion Loans or the Certificates, other than any loss, liability
or expense: (i) specifically required to be borne thereby pursuant to the terms
hereof; (ii) incurred in connection with any breach of a representation or
warranty made by it herein; (iii) incurred by reason of bad faith, willful
misconduct or negligence in the performance of its obligations or duties
hereunder, or by reason of negligent disregard of such obligations or duties; or
(iv) in the case of the Depositor and any of its directors, officers, employees
and agents, incurred in connection with any violation by any of them of any
state or federal securities law. Each of the Master Servicer and the Special
Servicer may rely, and shall be protected in acting or refraining from acting
upon, any resolution, officer's certificate, certificate of auditors or any
other certificate, statement, instrument, opinion, report, notice, request,
consent, order, financial statement, agreement, appraisal, bond or other
document (in electronic or paper format) as contemplated by and in accordance
with this Agreement and reasonably believed or in good faith believed by the
Master Servicer or the Special Servicer to be genuine and to have been signed or
presented by the proper party or parties and each of them may consult with
counsel, in which case any written advice of counsel or Opinion of Counsel shall
be full and complete authorization and protection with respect to any action
taken or suffered or omitted by it hereunder in good faith and in accordance
with such advice or Opinion of Counsel.
(b) None of the Depositor, the Master Servicer and the Special
Servicer shall be under any obligation to appear in, prosecute or defend any
legal or administrative action (whether in equity or at law), proceeding,
hearing or examination that is not incidental to its respective duties under
this Agreement or which in its opinion may involve it in any expense or
liability not recoverable from the Trust Fund; provided, however, that the
Depositor, the Master Servicer or the Special Servicer may in its discretion
undertake any such action, proceeding, hearing or examination that it may deem
necessary or desirable in respect to this Agreement and the rights and duties of
the parties hereto and the interests of the Certificateholders hereunder. In
such event, the legal expenses and costs of such action, proceeding, hearing or
examination and any liability resulting therefrom shall be expenses, costs and
liabilities of the Trust Fund, and the Depositor, the Master Servicer and the
Special Servicer shall be entitled to be reimbursed therefor out of amounts
attributable to the Mortgage Loans and Companion Loans on deposit in the
Certificate Account, as provided by Section 3.05(a).
(c) Each of the Master Servicer and the Special Servicer agrees to
indemnify the Depositor, the Trustee, the Paying Agent and the Trust and any
director, officer, employee or agent thereof, and hold them harmless, from and
against any and all claims, losses, penalties, fines, forfeitures, reasonable
legal fees and related costs, judgments, and any other costs, liabilities, fees
and expenses that any of them may sustain arising from or as a result of any
willful misfeasance, bad faith or negligence of the Master Servicer or the
Special Servicer, as the case may be, in the performance of its obligations and
duties under this Agreement or by reason of negligent disregard by the Master
Servicer or the Special Servicer, as the case may be, of its duties and
obligations hereunder or by reason of breach of any representations or
warranties made herein; provided that such indemnity shall not cover indirect or
consequential damages. The Trustee, the Paying Agent or the Depositor, as the
case may be, shall immediately notify the Master Servicer or the Special
Servicer, as applicable, if a claim is made by a third party with respect to
this Agreement or the Mortgage Loans entitling the Trust to indemnification
hereunder, whereupon the Master Servicer or the Special Servicer, as the case
may be, shall assume the defense of such claim (with counsel reasonably
satisfactory to the Trustee, the Paying Agent or the Depositor) and pay all
expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim. Any failure to so notify the Master Servicer or
the Special Servicer, as the case may be, shall not affect any rights any of the
foregoing Persons may have to indemnification under this Agreement or otherwise,
unless the Master Servicer's, or the Special Servicer's, as the case may be,
defense of such claim is materially prejudiced thereby.
(d) Each of the Trustee and the Paying Agent, respectively (and not
jointly) agrees to indemnify the Master Servicer and the Special Servicer and
any director, officer, employee or agent thereof, and hold them harmless, from
and against any and all claims, losses, penalties, fines, forfeitures,
reasonable legal fees and related costs, judgments, and any other costs,
liabilities, fees and expenses that any of them may sustain arising from or as a
result of any willful misfeasance, bad faith or negligence of the Trustee or the
Paying Agent, respectively, in the performance of its obligations and duties
under this Agreement or by reason of negligent disregard by the Trustee or the
Paying Agent, respectively, of its duties and obligations hereunder or by reason
of breach of any representations or warranties made herein; provided, that such
indemnity shall not cover indirect or consequential damages. The Master Servicer
or the Special Servicer, as the case may be, shall immediately notify the
Trustee and the Paying Agent, respectively, if a claim is made by a third party
with respect to this Agreement, whereupon the Trustee or the Paying Agent shall
assume the defense of such claim (with counsel reasonably satisfactory to the
Master Servicer or the Special Servicer) and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against it or them in respect of such
claim. Any failure to so notify the Trustee or the Paying Agent shall not affect
any rights any of the foregoing Persons may have to indemnification under this
Agreement or otherwise, unless the Trustee's or the Paying Agent's defense of
such claim is materially prejudiced thereby.
(e) The Depositor agrees to indemnify the Master Servicer and the
Special Servicer and any director, officer, employee or agent thereof, and hold
them harmless, from and against any and all claims, losses, penalties, fines,
forfeitures, reasonable legal fees and related costs, judgments, and any other
costs, liabilities, fees and expenses that any of them may sustain arising from
or as a result of any willful misfeasance, bad faith or negligence of the
Depositor, in the performance of its obligations and duties under this Agreement
or by reason of negligent disregard by the Depositor of its duties and
obligations hereunder or by reason of breach of any representations or
warranties made herein; provided, that such indemnity shall not cover indirect
or consequential damages. The Master Servicer or the Special Servicer, as the
case may be, shall immediately notify the Depositor if a claim is made by a
third party with respect to this Agreement, whereupon the Depositor shall assume
the defense of such claim (with counsel reasonably satisfactory to the Master
Servicer or the Special Servicer) and pay all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and satisfy any judgment or
decree which may be entered against it or them in respect of such claim. Any
failure to so notify the Depositor shall not affect any rights any of the
foregoing Persons may have to indemnification under this Agreement or otherwise,
unless the Depositor's defense of such claim is materially prejudiced thereby.
(f) The Universal Hotel Portfolio Master Servicer, the Universal
Hotel Portfolio Special Servicer, the Depositor, the Universal Hotel Portfolio
Paying Agent and the Universal Hotel Portfolio Trustee, and any of their
respective directors, officers, employees or agents (collectively, the
"Universal Hotel Portfolio Indemnified Parties"), shall be indemnified by the
Trust and held harmless against the Trust's pro rata share (subject to the
Universal Hotel Portfolio Intercreditor Agreement) of any and all claims,
losses, damages, penalties, fines, forfeitures, reasonable legal fees and
related costs, judgments, and any other costs, liabilities, fees and expenses
incurred in connection with any legal action relating to the Universal Hotel
Portfolio Mortgage Loan under the Universal Hotel Portfolio Pooling Agreement or
this Agreement (but excluding any such losses allocable to the Universal Hotel
Portfolio Companion Notes), reasonably requiring the use of counsel or the
incurring of expenses, other than any losses incurred by reason of any Universal
Hotel Portfolio Indemnified Party's willful misfeasance, bad faith or negligence
in the performance of its duties or by reason of negligent disregard of its
obligations and duties under the Universal Hotel Portfolio Pooling Agreement or
the Universal Hotel Portfolio Intercreditor Agreement.
The indemnification provided herein shall survive the termination of
this Agreement and the termination or resignation of the Master Servicer, the
Trustee, the Paying Agent and the Special Servicer.
Section 6.04 Depositor, Master Servicer and Special Servicer Not to
Resign. Subject to the provisions of Section 6.02, neither the Master Servicer
nor the Special Servicer shall resign from their respective obligations and
duties hereby imposed on each of them except upon (a) determination that such
party's duties hereunder are no longer permissible under applicable law or (b)
in the case of the Master Servicer, upon the appointment of, and the acceptance
of such appointment by, a successor Master Servicer and receipt by the Trustee
of written confirmation from each applicable Rating Agency that such resignation
and appointment will not cause such Rating Agency to downgrade, withdraw or
qualify any of the then current ratings assigned by such Rating Agency to any
Class of Certificates. Only the Master Servicer shall be permitted to resign
pursuant to clause (b) above. Any such determination permitting the resignation
of the Master Servicer or the Special Servicer pursuant to clause (a) above
shall be evidenced by an Opinion of Counsel (at the expense of the resigning
party) to such effect delivered to the Trustee and the Directing
Certificateholder. No such resignation by the Master Servicer or the Special
Servicer shall become effective until the Trustee or a successor Master Servicer
shall have assumed the Master Servicer's or Special Servicer's, as applicable,
responsibilities and obligations in accordance with Section 7.02. Upon any
termination or resignation of the Master Servicer hereunder, the Master Servicer
shall have the right and opportunity to appoint any successor Master Servicer
with respect to this Section 6.04, provided that such successor Master Servicer
is approved by the Directing Certificateholder, such approval not to be
unreasonably withheld.
Section 6.05 Rights of the Depositor in Respect of the Master
Servicer and the Special Servicer. The Depositor may, but is not obligated to,
enforce the obligations of the Master Servicer and the Special Servicer
hereunder and may, but is not obligated to, perform, or cause a designee to
perform, any defaulted obligation of the Master Servicer and the Special
Servicer hereunder or exercise the rights of the Master Servicer or Special
Servicer, as applicable, hereunder; provided, however, that the Master Servicer
and the Special Servicer shall not be relieved of any of their respective
obligations hereunder by virtue of such performance by the Depositor or its
designee. The Depositor shall not have any responsibility or liability for any
action or failure to act by the Master Servicer or the Special Servicer and is
not obligated to supervise the performance of the Master Servicer or the Special
Servicer under this Agreement or otherwise.
Section 6.06 The Master Servicer and the Special Servicer as
Certificate Owner. The Master Servicer, the Special Servicer or any Affiliate
thereof may become the Holder of (or, in the case of a Book-Entry Certificate,
Certificate Owner with respect to) any Certificate with (except as otherwise set
forth in the definition of "Certificateholder") the same rights it would have if
it were not the Master Servicer, the Special Servicer or an Affiliate thereof.
Section 6.07 The Directing Certificateholder. The Directing
Certificateholder shall be entitled to advise (1) the Special Servicer with
respect to all Specially Serviced Mortgage Loans, (2) the Special Servicer and
the Master Servicer with respect to Non-Specially Serviced Mortgage Loans as to
which the Master Servicer must obtain the consent or deemed consent of the
Special Servicer, and (3) the Special Servicer with respect to all Mortgage
Loans for which an extension of maturity is being considered by the Special
Servicer or by the Master Servicer subject to consent or deemed consent of the
Special Servicer, and notwithstanding anything herein to the contrary, except as
set forth in, and in any event subject to, Section 3.08(f) and the second
paragraph of this Section 6.07, the Master Servicer or Special Servicer, as
applicable, shall not be permitted to take any of the following actions as to
which the Directing Certificateholder has objected in writing within ten (10)
Business Days of being notified thereof (provided, that if such written
objection has not been received by the Master Servicer or the Special Servicer,
as applicable, within such ten (10) Business Day period, then the Directing
Certificateholder will be deemed to have waived its right to object):
(i) any proposed or actual foreclosure upon or comparable conversion
(which may include acquisitions of an REO Property) of the ownership of
properties securing such of the Mortgage Loans as come into and continue
in default;
(ii) any modification, consent to a modification or waiver of a
monetary term or material non-monetary term (including, without
limitation, the timing of payments and acceptance of discounted payoffs
but excluding waiver of Default Interest or late payment charges) of a
Mortgage Loan or any extension of the maturity date of any Mortgage Loan;
(iii) any sale of a Defaulted Mortgage Loan or REO Property (other
than in connection with the termination of the Trust Fund) for less than
the applicable Purchase Price;
(iv) any determination to bring an REO Property into compliance with
applicable environmental laws or to otherwise address Hazardous Materials
located at an REO Property;
(v) any release of collateral or any acceptance of substitute or
additional collateral for a Mortgage Loan, or any consent to either of the
foregoing, other than required pursuant to the specific terms of the
related Mortgage Loan;
(vi) any waiver of a "due-on-sale" or "due-on-encumbrance" clause
with respect to a Mortgage Loan or any consent to such waiver or consent
to a transfer of the Mortgaged Property or interests in the borrower or
consent to the incurrence of additional debt, other than any such transfer
or incurrence of debt as may be effected without the consent of the lender
under the related loan agreement;
(vii) any property management company changes (with respect to a
Mortgage Loan with a principal balance greater than $2,500,000) or
franchise changes for which the Master Servicer is required to consent or
approve;
(viii) releases of any escrows, reserve accounts or letters of
credit held as performance escrows or reserves, other than those required
pursuant to the specific terms of the Mortgage Loans with no material
lender discretion;
(ix) any acceptance of an assumption agreement releasing a Mortgagor
from liability under a Mortgage Loan other than pursuant to the specific
terms of such Mortgage Loan; and
(x) any determination by the Special Servicer of an Acceptable
Insurance Default;
provided, that, in the event that the Special Servicer or Master
Servicer (in the event the Master Servicer is otherwise authorized by this
Agreement to take such action), as applicable, determines that immediate action
is necessary to protect the interests of the Certificateholders (as a collective
whole), the Special Servicer or Master Servicer, as applicable may take any such
action without waiting for the Directing Certificateholder's response.
In addition, the Directing Certificateholder may direct the Special
Servicer to take, or to refrain from taking, such other actions with respect to
a Mortgage Loan, as the Directing Certificateholder may deem advisable or as to
which provision is otherwise made herein; provided, that notwithstanding
anything herein to the contrary, no such direction, and no objection
contemplated by the preceding paragraph, may require or cause the Special
Servicer to violate any provision of any Mortgage Loan, applicable law, this
Agreement or the REMIC Provisions, including without limitation the Special
Servicer's obligation to act in accordance with the Servicing Standards, or
expose the Master Servicer, the Special Servicer, the Paying Agent, the Trust
Fund or the Trustee to liability, or materially expand the scope of the Special
Servicer's responsibilities hereunder or cause the Special Servicer to act, or
fail to act, in a manner which in the reasonable judgment of the Special
Servicer is not in the best interests of the Certificateholders.
In the event the Special Servicer or Master Servicer, as applicable,
determines that a refusal to consent by the Directing Certificateholder or any
advice from the Directing Certificateholder would otherwise cause the Special
Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage
Loan, applicable law, this Agreement, including without limitation, the
Servicing Standards, the Special Servicer or Master Servicer, as applicable,
shall disregard such refusal to consent or advise and notify the other servicer,
the Directing Certificateholder, the Trustee and the Rating Agencies of its
determination, including a reasonably detailed explanation of the basis
therefor. The taking of, or refraining from taking, any action by the Master
Servicer or Special Servicer in accordance with the direction of or approval of
the Directing Certificateholder that does not violate any law or the Servicing
Standards or any other provisions of this Agreement, will not result in any
liability on the part of the Master Servicer or the Special Servicer.
The Directing Certificateholder shall have no liability to the Trust
Fund or the Certificateholders for any action taken, or for refraining from the
taking of any action, or for errors in judgment; provided, however, that the
Directing Certificateholder shall not be protected against any liability to the
Controlling Class Certificateholder that would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in the performance of duties or by
reason of reckless disregard of obligations or duties. By its acceptance of a
Certificate, each Certificateholder acknowledges and agrees that the Directing
Certificateholder may take actions that favor the interests of one or more
Classes of the Certificates including the Holders of the Controlling Class over
other Classes of the Certificates, and that the Directing Certificateholder may
have special relationships and interests that conflict with those of Holders of
some Classes of the Certificates, that the Directing Certificateholder may act
solely in the interests of the Holders of the Controlling Class including the
Holders of the Controlling Class, that the Directing Certificateholder does not
have any duties or liability to the Holders of any Class of Certificates other
than the Controlling Class, that the Directing Certificateholder shall not be
liable to any Certificateholder, by reason of its having acted solely in the
interests of the Holders of the Controlling Class including the Holders of the
Controlling Class, and that the Directing Certificateholder shall have no
liability whatsoever for having so acted, and no Certificateholder may take any
action whatsoever against the Directing Certificateholder or any director,
officer, employee, agent or principal thereof for having so acted.
[End of Article VI]
ARTICLE VII
DEFAULT
Section 7.01 Events of Default; Master Servicer and Special Servicer
Termination. (a) "Event of Default," wherever used herein, means any one of the
following events:
(i) (A) any failure by the Master Servicer to make any deposit
required to be made by the Master Servicer to the Certificate Account on
the day and by the time such deposit is required to be made under the
terms of this Agreement, which failure is not remedied within one Business
Day or (B) any failure by the Master Servicer to deposit into, or remit to
the Paying Agent or Companion Paying Agent (to the extent required under
the related Intercreditor Agreement) for deposit into, any Distribution
Account any amount required to be so deposited or remitted, which failure
is not remedied by 11:00 a.m. (New York City time) on the relevant
Distribution Date; or
(ii) any failure by the Special Servicer to deposit into the REO
Account, within one Business Day after such deposit is required to be made
or to remit to the Master Servicer for deposit into the Certificate
Account or to deposit into, or to remit to the Paying Agent for deposit
into, the Lower-Tier Distribution Account any amount required to be so
deposited or remitted by the Special Servicer pursuant to, and at the time
specified by, the terms of this Agreement; or
(iii) any failure on the part of the Master Servicer or the Special
Servicer duly to observe or perform in any material respect any of its
other covenants or obligations contained in this Agreement which continues
unremedied for a period of 30 days (5 days in the case of the Master
Servicer's or Special Servicer's, as applicable, obligations contemplated
by Sections 3.13, 3.14 and 4.02(e) hereof, 15 days in the case of the
Master Servicer's failure to make a Servicing Advance or 15 days in the
case of a failure to pay the premium for any insurance policy required to
be maintained hereunder) after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given (A) to
the Master Servicer or the Special Servicer, as the case may be, by any
other party hereto, or (B) to the Master Servicer or the Special Servicer,
as the case may be, with a copy to each other party to this Agreement, by
the Holders of Certificates evidencing Percentage Interests aggregating
not less than 25%; provided, however, if such failure is capable of being
cured and the Master Servicer or Special Servicer, as applicable, is
diligently pursuing such cure, such 30-day period will be extended an
additional 30 days; or
(iv) any breach on the part of the Master Servicer or the Special
Servicer of any representation or warranty contained in Section 3.23 or
Section 3.24, as applicable, which materially and adversely affects the
interests of any Class of Certificateholders or Companion Holders
(excluding a Universal Hotel Portfolio Companion Noteholder) and which
continues unremedied for a period of 30 days after the date on which
notice of such breach, requiring the same to be remedied, shall have been
given to the Master Servicer or the Special Servicer, as the case may be,
by the Depositor, the Paying Agent or the Trustee, or to the Master
Servicer, the Special Servicer, the Depositor, the Paying Agent and the
Trustee by the Holders of Certificates evidencing Percentage Interests
aggregating not less than 25%; provided, however, if such breach is
capable of being cured and the Master Servicer or Special Servicer, as
applicable, is diligently pursuing such cure, such 30-day period will be
extended an additional 30 days; or
(v) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Master Servicer or the Special Servicer and such decree or order shall
have remained in force undischarged, undismissed or unstayed for a period
of 60 days; or
(vi) the Master Servicer or the Special Servicer shall consent to
the appointment of a conservator, receiver, liquidator, trustee or similar
official in any bankruptcy, insolvency, readjustment of debt, marshaling
of assets and liabilities or similar proceedings of or relating to the
Master Servicer or the Special Servicer or of or relating to all or
substantially all of its property; or
(vii) the Master Servicer or the Special Servicer shall admit in
writing its inability to pay its debts generally as they become due, file
a petition to take advantage of any applicable bankruptcy, insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, voluntarily suspend payment of its obligations or take any
corporate action in furtherance of the foregoing; or
(viii) a servicing officer of the Master Servicer or Special
Servicer, as applicable, obtains actual knowledge that Xxxxx'x has (i)
qualified, downgraded or withdrawn its rating or ratings of one or more
Classes of Certificates, or (ii) has placed one or more Classes of
Certificates on "watch status" in contemplation of a ratings downgrade or
withdrawal (and such "watch status" placement shall not have been
withdrawn by Xxxxx'x within 60 days of the date such servicing officer
obtained such actual knowledge) and, in the case of either of clauses (i)
or (ii), cited servicing concerns with the Master Servicer or Special
Servicer, as applicable, as the sole or material factor in such rating
action; or
(ix) the Master Servicer or the Special Servicer is no longer listed
on S&P's Select Servicer List as a U.S. Commercial Mortgage Master
Servicer or a U.S. Commercial Mortgage Special Servicer, as applicable,
and any of the ratings assigned to the Certificates have been qualified,
downgraded or withdrawn in connection with such a delisting.
(b) If any Event of Default with respect to the Master Servicer or
the Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") shall occur and be continuing, then, and in each and every
such case, so long as such Event of Default shall not have been remedied, the
Trustee or the Depositor may, and at the written direction of the Directing
Certificateholder or the Holders of Certificates entitled to at least 51% of the
Voting Rights, the Trustee shall, terminate, by notice in writing to the
Defaulting Party, with a copy of such notice to the Depositor, all of the rights
(subject to Section 3.11 and Section 6.03) and obligations of the Defaulting
Party under this Agreement and in and to the Mortgage Loans and the proceeds
thereof (other than as a Certificateholder or Companion Holder, if applicable);
provided, however, that the Defaulting Party shall be entitled to the payment of
accrued and unpaid compensation and reimbursement through the date of such
termination as provided for under this Agreement for services rendered and
expenses incurred. From and after the receipt by the Defaulting Party of such
written notice except as otherwise provided in this Article VII, all authority
and power of the Defaulting Party under this Agreement, whether with respect to
the Certificates (other than as a Holder of any Certificate) or the Mortgage
Loans or otherwise, shall pass to and be vested in the Trustee with respect to a
termination of the Master Servicer or the Special Servicer pursuant to and under
this Section, and, without limitation, the Trustee is hereby authorized and
empowered to execute and deliver, on behalf of and at the expense of the
Defaulting Party, as attorney-in-fact or otherwise, any and all documents and
other instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. The Master Servicer and Special Servicer each
agree that if it is terminated pursuant to this Section 7.01(b), it shall
promptly (and in any event no later than 20 Business Days subsequent to its
receipt of the notice of termination) provide the Trustee with all documents and
records requested by it to enable it to assume the Master Servicer's or the
Special Servicer's, as the case may be, functions hereunder, and shall cooperate
with the Trustee in effecting the termination of the Master Servicer's or the
Special Servicer's, as the case may be, responsibilities and rights (subject to
Section 3.11 and Section 6.03) hereunder, including, without limitation, the
transfer within 5 Business Days to the Trustee or the Master Servicer, as
applicable, for administration by it of all cash amounts which shall at the time
be or should have been credited by the Master Servicer to the Certificate
Account or any Servicing Account (if it is the Defaulting Party) or by the
Special Servicer to the REO Account (if it is the Defaulting Party) or
thereafter be received with respect to the Mortgage Loans or any REO Property
(provided, however, that the Master Servicer and the Special Servicer each
shall, if terminated pursuant to this Section 7.01(b), continue to be entitled
to receive all amounts accrued or owing to it under this Agreement on or prior
to the date of such termination, whether in respect of Advances (in the case of
the Special Servicer or the Master Servicer) or otherwise, and it and its
Affiliates and the directors, managers, officers, members, employees and agents
of it and its Affiliates shall continue to be entitled to the benefits of
Section 3.11 and Section 6.03 notwithstanding any such termination).
(c) If the Master Servicer receives notice of termination solely due
to an Event of Default under Section 7.01(b) solely due to an Event of Default
under Section 7.01(a)(viii) through (x) and if the Master Servicer to be
terminated pursuant to Section 7.01(b) provides the Trustee with the appropriate
"request for proposal" materials within five (5) Business Days following such
termination notice, then the Master Servicer shall continue to service as Master
Servicer hereunder until a successor Master Servicer is selected in accordance
with this Section 7.01(c). Upon receipt of the "request for proposal" materials,
Trustee shall promptly thereafter (using such "request for proposal" materials
provided by the Master Servicer pursuant to Section 7.01(b)) solicit good faith
bids for the rights to service the Mortgage Loans and Companion Loans under this
Agreement from at least three (3) Persons qualified to act as Master Servicer
hereunder in accordance with Sections 6.02 and 7.02 (any such Person so
qualified, a "Qualified Bidder") or, if three (3) Qualified Bidders cannot be
located, then from as many persons as the Trustee can determine are Qualified
Bidders; provided that, at the Trustee's request, the Master Servicer shall
supply the Trustee with the names of Persons from whom to solicit such bids; and
provided further, that the Trustee shall not be responsible if less than three
(3) or no Qualified Bidders submit bids for the right to service the Mortgage
Loans and Companion Loans under this Agreement. The bid proposal shall require
any Successful Bidder (as defined below), as a condition of such bid, to enter
into this Agreement as successor Master Servicer, and to agree to be bound by
the terms hereof, within 45 days after the notice of termination of the Master
Servicer. The materials provided to the Trustee shall provide for soliciting
bids: (i) on the basis of such successor Master Servicer retaining all
Sub-Servicers to continue the primary servicing of the Mortgage Loans and
Companion Loans pursuant to the terms of the respective Sub-Servicing Agreements
(each, a "Servicing-Retained Bid"); and (ii) on the basis of terminating each
Sub-Servicing Agreement and Sub-Servicer that it is permitted to terminate in
accordance with Section 3.22 (each, a "Servicing-Released Bid"). The Trustee
shall select the Qualified Bidder with the highest cash Servicing-Retained Bid
(or, if none, the highest cash Servicing-Released Bid) (the "Successful Bidder")
to act as successor Master Servicer hereunder; provided, however, that if the
Trustee does not receive confirmation in writing by each Rating Agency that the
appointment of such Successful Bidder as successor Master Servicer will not
result in the withdrawal, downgrade, or qualification of the rating assigned by
the Rating Agency to any class of Certificates within 10 days after the
selection of such Successful Bidder, then the Trustee shall repeat the bid
process described above (but subject to the above-described 45-day time period)
until such confirmation is obtained. The Trustee shall direct the Successful
Bidder to enter into this Agreement as successor Master Servicer pursuant to the
terms hereof no later than 45 days after notice of the termination of the Master
Servicer.
Upon the assignment and acceptance of master servicing rights
hereunder (subject to the terms of Section 3.11) to and by the Successful
Bidder, the Trustee shall remit or cause to be remitted (i) if the successful
bid was a Servicing-Retained Bid, to the Master Servicer to be terminated
pursuant to Section 7.01(b), the amount of such cash bid received from the
Successful Bidder (net of "out-of-pocket" expenses incurred in connection with
obtaining such bid and transferring servicing) and (ii) if the successful bid
was a Servicing-Released Bid, to the Master Servicer and each terminated
Sub-Servicer its respective Bid Allocation.
The Master Servicer to be terminated pursuant to Section 7.01(b)
shall be responsible for all out-of-pocket expenses incurred in connection with
the attempt to sell its rights to service the Mortgage Loans, which expenses are
not reimbursed to the party that incurred such expenses pursuant to the
preceding paragraph.
If the Successful Bidder has not entered into this Agreement as
successor Master Servicer within the above-described time period or no
Successful Bidder was identified within the above-described time period, the
Master Servicer to be terminated pursuant to Section 7.01(b) shall reimburse the
Trustee for all reasonable "out-of-pocket" expenses incurred by the Trustee in
connection with such bid process and the Trustee shall have no further
obligations under this Section 7.01(c). The Trustee thereafter may act or may
select a successor to act as Master Servicer hereunder in accordance with
Section 7.02.
(d) The Directing Certificateholder shall be entitled to terminate
the rights (subject to Section 3.11 and Section 6.03(d)) and obligations of the
Special Servicer under this Agreement, with or without cause, upon ten (10)
Business Days' notice to the Special Servicer, the Master Servicer, the Paying
Agent and the Trustee; such termination to be effective upon the appointment of
a successor Special Servicer meeting the requirements of this Section 7.01(d).
Upon a termination or resignation of such Special Servicer, the Directing
Certificateholder shall appoint a successor Special Servicer; provided, however,
that (i) such successor will meet the requirements set forth in Section 7.02 and
(ii) as evidenced in writing by each of the Rating Agencies, the proposed
successor of such Special Servicer will not, in and of itself, result in a
downgrading, withdrawal or qualification of the then-current ratings provided by
the Rating Agencies in respect to any Class of then outstanding Certificates
that is rated.
(e) No penalty or fee shall be payable to the terminated Special
Servicer with respect to any termination pursuant to Section 7.01(d). All costs
and expenses of any such termination made without cause shall be paid by the
Holders of the Controlling Class.
(f) The Master Servicer and Special Servicer shall, from time to
time, take all such reasonable actions as are required by them in accordance
with the related Servicing Standards in order to prevent the Certificates from
being placed on "watch" status or downgraded due to servicing or special
servicing concerns by any Rating Agency.
Section 7.02 Trustee to Act; Appointment of Successor. On and after
the time the Master Servicer or the Special Servicer, as the case may be, either
resigns pursuant to Subsection (a) of the first sentence of Section 6.04 or
receives a notice of termination for cause pursuant to Section 7.01(b), and
provided that no acceptable successor has been appointed within the time period
specified in Section 7.01(c), the Trustee shall be the successor to the Master
Servicer or the Special Servicer, until such successor is appointed by the
Directing Certificateholder as provided in Section 7.01(c), as applicable, in
all respects in its capacity as Master Servicer or Special Servicer under this
Agreement and the transactions set forth or provided for herein and shall be
subject to, and have the benefit of, all of the rights, (subject to Section 3.11
and Section 6.03) benefits, responsibilities, duties, liabilities and
limitations on liability relating thereto and that arise thereafter placed on or
for the benefit of the Master Servicer or Special Servicer by the terms and
provisions hereof; provided, however, that any failure to perform such duties or
responsibilities caused by the terminated party's failure under Section 7.01 to
provide information or moneys required hereunder shall not be considered a
default by such successor hereunder. The appointment of a successor Master
Servicer shall not affect any liability of the predecessor Master Servicer which
may have arisen prior to its termination as Master Servicer, and the appointment
of a successor Special Servicer shall not affect any liability of the
predecessor Special Servicer which may have arisen prior to its termination as
Special Servicer. The Trustee in its capacity as successor to the Master
Servicer or the Special Servicer, as the case may be, shall not be liable for
any of the representations and warranties of the Master Servicer or the Special
Servicer, respectively, herein or in any related document or agreement, for any
acts or omissions of the predecessor Master Servicer or Special Servicer or for
any losses incurred by the Master Servicer pursuant to Section 3.06 hereunder,
nor shall the Trustee be required to purchase any Mortgage Loan hereunder solely
as a result of its obligations as successor Master Servicer or Special Servicer,
as the case may be. Subject to Section 3.11, as compensation therefor, the
Trustee as successor Master Servicer shall be entitled to the Servicing Fees and
all fees relating to the Mortgage Loans which the Master Servicer would have
been entitled to if the Master Servicer had continued to act hereunder,
including but not limited to any income or other benefit from any Permitted
Investment pursuant to Section 3.06, and subject to Section 3.11, the Trustee as
successor to the Special Servicer shall be entitled to the Special Servicing
Fees to which the Special Servicer would have been entitled if the Special
Servicer had continued to act hereunder. Should the Trustee succeed to the
capacity of the Master Servicer or the Special Servicer, as the case may be, the
Trustee shall be afforded the same standard of care and liability as the Master
Servicer or the Special Servicer, as applicable, hereunder notwithstanding
anything in Section 8.01 to the contrary, but only with respect to actions taken
by it in its role as successor Master Servicer or successor Special Servicer, as
the case may be, and not with respect to its role as Trustee hereunder.
Notwithstanding the above, the Trustee may, if it shall be unwilling to act as
successor to the Master Servicer or Special Servicer, or shall, if it is unable
to so act, or if the Trustee is not approved as a servicer by each Rating
Agency, or if the Directing Certificateholder or the Holders of Certificates
entitled to at least 51% of the Voting Rights so request in writing to the
Trustee, promptly appoint, or petition a court of competent jurisdiction to
appoint, any established mortgage loan servicing institution which meets the
criteria set forth in Section 6.04 and otherwise herein, as the successor to the
Master Servicer or the Special Servicer, as applicable, hereunder in the
assumption of all or any part of the responsibilities, duties or liabilities of
the Master Servicer or Special Servicer hereunder. No appointment of a successor
to the Master Servicer or the Special Servicer hereunder shall be effective
until the assumption in writing by the successor to the Master Servicer or the
Special Servicer of all its responsibilities, duties and liabilities hereunder
that arise thereafter and upon Rating Agency confirmation, and which appointment
has been approved by the Directing Certificateholder, such approval not to be
unreasonably withheld. Pending appointment of a successor to the Master Servicer
or the Special Servicer hereunder, unless the Trustee shall be prohibited by law
from so acting, the Trustee shall act in such capacity as herein above provided.
In connection with such appointment and assumption of a successor to the Master
Servicer or Special Servicer as described herein, the Trustee or the Master
Servicer, as applicable, may make such arrangements for the compensation of such
successor out of payments on Mortgage Loans as it and such successor shall
agree; provided, however, that no such compensation with respect to a successor
Master Servicer or successor Special Servicer, as the case may be, shall be in
excess of that permitted the terminated Master Servicer or Special Servicer, as
the case may be, hereunder. The Trustee, the Master Servicer or the Special
Servicer (whichever is not the terminated party) and such successor shall take
such action, consistent with this Agreement, as shall be necessary to effectuate
any such succession. Any costs and expenses associated with the transfer of the
servicing function (other than with respect to a termination without cause)
under this Agreement shall be borne by the predecessor servicer.
Section 7.03 Notification to Certificateholders. (a) Upon any
resignation of the Master Servicer or the Special Servicer pursuant to Section
6.04, any termination of the Master Servicer or the Special Servicer pursuant to
Section 7.01 or any appointment of a successor to the Master Servicer or the
Special Servicer pursuant to Section 7.02, the Paying Agent shall give prompt
written notice thereof to Certificateholders at their respective addresses
appearing in the Certificate Register.
(b) Not later than the later of (i) 60 days after the occurrence of
any event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five (5) days after the Paying Agent
would be deemed to have notice of the occurrence of such an event in accordance
with Section 8.02(vii), the Paying Agent shall transmit by mail to the Depositor
and all Certificateholders notice of such occurrence, unless such default shall
have been cured.
Section 7.04 Waiver of Events of Default. The Holders of
Certificates representing at least 66(2)/3% of the Voting Rights allocated to
each Class of Certificates affected by any Event of Default hereunder may waive
such Event of Default within 20 days of the receipt of notice from the Paying
Agent of the occurrence of such Event of Default; provided, however, that an
Event of Default under clause (i) of Section 7.01(a) may be waived only by all
of the Certificateholders of the affected Classes. Upon any such waiver of an
Event of Default, such Event of Default shall cease to exist and shall be deemed
to have been remedied for every purpose hereunder. Upon any such waiver of an
Event of Default by Certificateholders, the Trustee shall be entitled to recover
all costs and expenses incurred by it in connection with enforcement action
taken with respect to such Event of Default prior to such waiver from the Trust
Fund. No such waiver shall extend to any subsequent or other Event of Default or
impair any right consequent thereon except to the extent expressly so waived.
Notwithstanding any other provisions of this Agreement, for purposes of waiving
any Event of Default pursuant to this Section 7.04, Certificates registered in
the name of the Depositor or any Affiliate of the Depositor shall be entitled to
the same Voting Rights with respect to the matters described above as they would
if any other Person held such Certificates.
Section 7.05 Trustee as Maker of Advances. In the event that the
Master Servicer fails to fulfill its obligations hereunder to make any Advances
and such failure remains uncured, the Trustee shall perform such obligations (x)
within five Business Days following such failure by the Master Servicer with
respect to Servicing Advances resulting in an Event of Default under Section
7.01(a)(iii) hereof to the extent a Responsible Officer of the Trustee has
actual knowledge of such failure with respect to such Servicing Advances and (y)
by noon, New York City time, on the related Distribution Date with respect to
P&I Advances pursuant to the Paying Agent's notice of failure pursuant to
Section 4.03(a) unless such failure has been cured. With respect to any such
Advance made by the Trustee, the Trustee shall succeed to all of the Master
Servicer's rights with respect to Advances hereunder, including, without
limitation, the Master Servicer's rights of reimbursement and interest on each
Advance at the Reimbursement Rate, and rights to determine that a proposed
Advance is a Nonrecoverable P&I Advance or Servicing Advance, as the case may
be, (without regard to any impairment of any such rights of reimbursement caused
by such Master Servicer's default in its obligations hereunder); provided,
however, that if Advances made by the Trustee and the Master Servicer shall at
any time be outstanding, or any interest on any Advance shall be accrued and
unpaid, all amounts available to repay such Advances and the interest thereon
hereunder shall be applied entirely to the Advances outstanding to the Trustee,
until such Advances shall have been repaid in full, together with all interest
accrued thereon, prior to reimbursement of the Master Servicer for such
Advances. The Trustee shall be entitled to conclusively rely on any notice given
with respect to a Nonrecoverable Advance hereunder.
[End of Article VII]
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE PAYING AGENT
Section 8.01 Duties of the Trustee and the Paying Agent. (a) The
Trustee and the Paying Agent, prior to the occurrence of an Event of Default and
after the curing or waiving of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs. Any permissive right of the Trustee and the Paying Agent
contained in this Agreement shall not be construed as a duty.
(b) The Trustee or the Paying Agent, upon receipt of all
resolutions, certificates, statements, opinions, reports, documents, orders or
other instruments furnished to the Trustee or the Paying Agent which are
specifically required to be furnished pursuant to any provision of this
Agreement (other than the Mortgage Files, the review of which is specifically
governed by the terms of Article II), shall examine them to determine whether
they conform to the requirements of this Agreement. If any such instrument is
found not to conform to the requirements of this Agreement in a material manner,
the Trustee or the Paying Agent shall notify the party providing such instrument
and requesting the correction thereof. The Trustee or the Paying Agent shall not
be responsible for the accuracy or content of any resolution, certificate,
statement, opinion, report, document, order or other instrument furnished by the
Depositor, the Master Servicer or the Special Servicer or another Person, and
accepted by the Trustee or the Paying Agent in good faith, pursuant to this
Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee or the Paying Agent from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct or bad faith; provided,
however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default which may have occurred, the duties
and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and, in the absence of bad faith
on the part of the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement;
(ii) Neither the Trustee nor the Paying Agent shall be liable for an
error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee or the Paying Agent, respectively,
unless it shall be proved that the Trustee or the Paying Agent,
respectively, was negligent in ascertaining the pertinent facts; and
(iii) The Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of Holders of Certificates entitled to at least 25% of
the Voting Rights relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Agreement (unless a
higher percentage of Voting Rights is required for such action).
(d) The Paying Agent shall promptly make available via its internet
website to the Companion Holders all reports that the Paying Agent has made
available to Certificateholders under this Agreement.
Section 8.02 Certain Matters Affecting the Trustee and the Paying
Agent. Except as otherwise provided in Section 8.01:
(i) The Trustee and the Paying Agent may rely upon and shall be
protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
Appraisal, bond or other paper or document reasonably believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(ii) The Trustee and the Paying Agent may consult with counsel and
the written advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken
or suffered or omitted by it hereunder in good faith and in accordance
therewith;
(iii) Neither the Trustee nor the Paying Agent shall be under any
obligation to exercise any of the trusts or powers vested in it by this
Agreement or to make any investigation of matters arising hereunder or to
institute, conduct or defend any litigation hereunder or in relation
hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement, unless
such Certificateholders shall have offered to the Trustee or the Paying
Agent, as applicable, reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby; neither
the Trustee nor the Paying Agent shall be required to expend or risk its
own funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it; nothing contained herein shall, however, relieve
the Trustee of the obligation, upon the occurrence of an Event of Default
which has not been cured, to exercise such of the rights and powers vested
in it by this Agreement, and to use the same degree of care and skill in
their exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs;
(iv) Neither the Trustee nor the Paying Agent shall be liable for
any action reasonably taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default which may have occurred, neither
the Trustee nor the Paying Agent shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document, unless
requested in writing to do so by Holders of Certificates entitled to at
least 50% of the Voting Rights; provided, however, that if the payment
within a reasonable time to the Trustee or the Paying Agent of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee or the Paying Agent,
respectively, not reasonably assured to the Trustee or the Paying Agent by
the security afforded to it by the terms of this Agreement, the Trustee or
the Paying Agent, respectively, may require reasonable indemnity from such
requesting Holders against such expense or liability as a condition to
taking any such action. The reasonable expense of every such reasonable
examination shall be paid by the requesting Holders;
(vi) The Trustee or the Paying Agent may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or by
or through agents or attorneys; provided, however, that the appointment of
such agents or attorneys shall not relieve the Trustee or the Paying Agent
of its duties or obligations hereunder;
(vii) For all purposes under this Agreement, the Trustee shall not
be deemed to have notice of any Event of Default unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a default is received by the
Trustee at the Corporate Trust Office, and such notice references the
Certificates or this Agreement; and
(viii) Neither the Trustee nor the Paying Agent shall be responsible
for any act or omission of the Master Servicer or the Special Servicer
(unless the Trustee is acting as Master Servicer or Special Servicer, as
the case may be in which case the Trustee shall only be responsible for
its own actions as Master Servicer or Special Servicer) or of the
Depositor.
Section 8.03 Trustee and Paying Agent Not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans. The recitals contained herein and
in the Certificates, other than the acknowledgments of the Trustee or the Paying
Agent in Sections 2.02 and 2.05 and the signature, if any, of the Certificate
Registrar and Authenticating Agent set forth on any outstanding Certificate,
shall be taken as the statements of the Depositor, the Master Servicer or the
Special Servicer, as the case may be, and the Trustee or the Paying Agent assume
no responsibility for their correctness. Neither the Trustee nor the Paying
Agent makes any representations as to the validity or sufficiency of this
Agreement or of any Certificate (other than as to the signature, if any, of the
Trustee or the Paying Agent set forth thereon) or of any Mortgage Loan or
related document. Neither the Trustee nor the Paying Agent shall be accountable
for the use or application by the Depositor of any of the Certificates issued to
it or of the proceeds of such Certificates, or for the use or application of any
funds paid to the Depositor in respect of the assignment of the Mortgage Loans
to the Trust Fund, or any funds deposited in or withdrawn from the Certificate
Account or any other account by or on behalf of the Depositor, the Master
Servicer, the Special Servicer or in the case of the Trustee, the Paying Agent
(unless the Trustee is acting as Paying Agent). The Trustee and the Paying Agent
shall not be responsible for the accuracy or content of any resolution,
certificate, statement, opinion, report, document, order or other instrument
furnished by the Depositor, the Master Servicer or the Special Servicer and
accepted by the Trustee or the Paying Agent, in good faith, pursuant to this
Agreement.
Section 8.04 Trustee or Paying Agent May Own Certificates. The
Trustee or the Paying Agent each in its individual capacity, not as Trustee or
the Paying Agent, may become the owner or pledgee of Certificates, and may deal
with the Depositor, the Master Servicer, the Special Servicer, the Initial
Purchasers and the Underwriters in banking transactions, with the same rights it
would have if it were not Trustee or Paying Agent.
Section 8.05 Fees and Expenses of Trustee and Paying Agent;
Indemnification of Trustee and Paying Agent. (a) As compensation for the
performance of their respective duties hereunder, the Trustee will be paid the
Trustee Fee and the Paying Agent will be paid the Paying Agent Fee, in each
case, equal to the Trustee's and the Paying Agent's respective portion of one
month's interest at the Trustee Fee Rate, which shall cover recurring and
otherwise reasonably anticipated expenses of the Trustee and the Paying Agent,
respectively. The Trustee Fee shall be paid monthly on a Mortgage
Loan-by-Mortgage Loan basis. As to each Mortgage Loan and REO Loan, the Trustee
Fee and the Paying Agent Fee shall accrue from time to time at the Trustee's and
the Paying Agent's respective portion of Trustee Fee Rate and shall be computed
on the basis of the Stated Principal Balance of such Mortgage Loan and a 360-day
year consisting of twelve 30-day months. The Trustee Fee and the Paying Agent
Fee (which shall not be limited to any provision of law in regard to the
compensation of a trustee of an express trust) shall constitute the Trustee's
and the Paying Agent's, respectively, sole form of compensation for all services
rendered by it in the execution of the trusts hereby created and in the exercise
and performance of any of the powers and duties of the Trustee and the Paying
Agent hereunder. No Trustee Fee shall be payable with respect to the Companion
Loans.
(b) The Trustee, the Paying Agent and any director, officer,
employee or agent of the Trustee and the Paying Agent, respectively, shall be
entitled to be indemnified and held harmless by the Trust Fund (to the extent of
amounts on deposit in the Certificate Account or Lower-Tier Distribution Account
from time to time) against any loss, liability or expense (including, without
limitation, costs and expenses of litigation, and of investigation, counsel
fees, damages, judgments and amounts paid in settlement, and expenses incurred
in becoming successor master servicer or successor special servicer, to the
extent not otherwise paid hereunder) arising out of, or incurred in connection
with, any act or omission of the Trustee or the Paying Agent, respectively,
relating to the exercise and performance of any of the powers and duties of the
Trustee or the Paying Agent, respectively, hereunder; provided, however, that
none of the Trustee, the Paying Agent nor any of the other above specified
Persons shall be entitled to indemnification pursuant to this Section 8.05(b)
for (i) allocable overhead, (ii) expenses or disbursements incurred or made by
or on behalf of the Trustee or the Paying Agent, respectively, in the normal
course of the Trustee or the Paying Agent, respectively, performing its duties
in accordance with any of the provisions hereof, which are not "unanticipated
expenses of the REMIC" within the meaning of Treasury Regulations Section
1.860G-1(b)(3)(ii), (iii) any expense or liability specifically required to be
borne thereby pursuant to the terms hereof or (iv) any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or negligence in
the performance of the Trustee's or the Paying Agent's, respectively,
obligations and duties hereunder, or by reason of negligent disregard of such
obligations or duties, or as may arise from a breach of any representation,
warranty or covenant of the Trustee or the Paying Agent, respectively, made
herein. The provisions of this Section 8.05(b) shall survive the termination of
this Agreement and any resignation or removal of the Trustee or the Paying
Agent, respectively, and appointment of a successor thereto. The foregoing
indemnity shall also apply to the Paying Agent in its capacities of Certificate
Registrar and Authenticating Agent.
Section 8.06 Eligibility Requirements for Trustee and the Paying
Agent. The Trustee and the Paying Agent hereunder shall at all times be, and
will be required to resign if it fails to be, (i) a corporation, national bank,
national banking association or a trust company, organized and doing business
under the laws of any state or the United States of America, authorized under
such laws to exercise corporate trust powers and to accept the trust conferred
under this Agreement, having a combined capital and surplus of at least
$100,000,000 and subject to supervision or examination by federal or state
authority and shall not be an Affiliate of the Master Servicer or the Special
Servicer (except during any period when the Trustee is acting as, or has become
successor to, the Master Servicer or the Special Servicer, as the case may be,
pursuant to Section 7.02), (ii) an institution insured by the Federal Deposit
Insurance Corporation and (iii) with respect to the Trustee only, an institution
whose long-term senior unsecured debt is rated at least "AA-" by S&P and "Aa3"
by Xxxxx'x (or such entity as would not, as evidenced in writing by such Rating
Agency, result in the qualification, downgrading or withdrawal of any of the
ratings then assigned thereby to the Certificates).
If such corporation, national bank or national banking association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section the combined capital and surplus of such corporation,
national bank or national banking association shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In the event the place of business from which the Paying Agent
administers the Upper-Tier REMIC and the Lower-Tier REMIC or in which the
Trustee's office is located is in a state or local jurisdiction that imposes a
tax on the Trust Fund on the net income of a REMIC (other than a tax
corresponding to a tax imposed under the REMIC Provisions), the Paying Agent or
the Trustee, as applicable shall elect either to (i) resign immediately in the
manner and with the effect specified in Section 8.07, (ii) pay such tax at no
expense to the Trust or (iii) administer the Upper-Tier REMIC and the Lower-Tier
REMIC from a state and local jurisdiction that does not impose such a tax.
Section 8.07 Resignation and Removal of the Trustee and Paying
Agent. (a) The Trustee and/or the Paying Agent may at any time resign and be
discharged from the trusts hereby created by giving written notice thereof to
the Depositor, the Master Servicer, the Special Servicer and the Trustee or the
Paying Agent, as applicable, and to all Certificateholders. Upon receiving such
notice of resignation, the Depositor shall promptly appoint a successor trustee
or paying agent acceptable to the Master Servicer and the Directing
Certificateholder by written instrument, in duplicate, which instrument shall be
delivered to the resigning Trustee or Paying Agent and to the successor trustee
or paying agent. A copy of such instrument shall be delivered to the Master
Servicer, the Special Servicer, the Certificateholders and the Trustee or Paying
Agent, as applicable, by the Depositor. If no successor trustee or paying agent
shall have been so appointed and have accepted appointment within 30 days after
the giving of such notice of resignation, the resigning Trustee or Paying Agent
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(b) If at any time the Trustee or Paying Agent shall cease to be
eligible in accordance with the provisions of Section 8.06 (and in the case of
the Paying Agent, Section 5.07) and shall fail to resign after written request
therefor by the Depositor or the Master Servicer, or if at any time the Trustee
or Paying Agent shall become incapable of acting, or shall be adjudged bankrupt
or insolvent, or a receiver of the Trustee or the Paying Agent or of its
property shall be appointed, or any public officer shall take charge or control
of the Trustee or Paying Agent or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, or if the Trustee or Paying Agent
(if different than the Trustee) shall fail (other than by reason of the failure
of either the Master Servicer or the Special Servicer to timely perform its
obligations hereunder or as a result of other circumstances beyond the Trustee's
or Paying Agent's, as applicable, reasonable control), to timely publish any
report to be delivered, published or otherwise made available by the Trustee or
Paying Agent pursuant to Section 4.02 and such failure shall continue unremedied
for a period of five days, or if the Trustee or Paying Agent fails to make
distributions required pursuant to Sections 3.05(c), 4.01 or 9.01, then the
Depositor may remove the Trustee or Paying Agent, as applicable, and appoint a
successor trustee or paying agent acceptable to the Master Servicer or paying
agent acceptable to the Trustee or Paying Agent, as applicable, by written
instrument, in duplicate, which instrument shall be delivered to the Trustee or
Paying Agent so removed and to the successor trustee or paying agent in the case
of the removal of the Trustee or Paying Agent. A copy of such instrument shall
be delivered to the Master Servicer, the Special Servicer and the
Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 51% of the
Voting Rights may at any time remove the Trustee and/or Paying Agent and appoint
a successor trustee or paying agent by written instrument or instruments, in
triplicate, signed by such Holders or their attorneys-in-fact duly authorized,
one complete set of which instruments shall be delivered to the Master Servicer,
one complete set to the Trustee or Paying Agent so removed and one complete set
to the successor so appointed. A copy of such instrument shall be delivered to
the Depositor, the Special Servicer and the remaining Certificateholders by the
Master Servicer.
(d) Any resignation or removal of the Trustee or Paying Agent and
appointment of a successor trustee or paying agent pursuant to any of the
provisions of this Section 8.07 shall not become effective until acceptance of
appointment by the successor trustee or paying agent as provided in Section
8.08.
Upon any succession of a trustee or paying agent under this
Agreement, the predecessor trustee or paying agent shall be entitled to the
payment of accrued and unpaid compensation and reimbursement as provided for
under this Agreement for services rendered and expenses incurred (including
without limitation, unreimbursed Advances). No trustee or paying agent shall be
personally liable for any action or omission of any successor trustee or paying
agent.
Section 8.08 Successor Trustee or Paying Agent. (a) Any successor
trustee or paying agent appointed as provided in Section 8.07 shall execute,
acknowledge and deliver to the Depositor, the Master Servicer, the Special
Servicer and to its predecessor trustee or paying agent an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee or paying agent shall become effective and such successor
trustee or paying agent without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with the like effect as if originally named as Trustee or
Paying Agent herein. The predecessor trustee shall deliver to the successor
trustee all Mortgage Files and related documents and statements held by it
hereunder (other than any Mortgage Files at the time held on its behalf by a
Custodian, which Custodian, at Custodian's option shall become the agent of the
successor Trustee), and the Depositor, the Master Servicer, the Special Servicer
and the predecessor trustee shall execute and deliver such instruments and do
such other things as may reasonably be required to more fully and certainly vest
and confirm in the successor trustee all such rights, powers, duties and
obligations, and to enable the successor trustee to perform its obligations
hereunder.
(b) No successor trustee or successor paying agent shall, as
applicable, accept appointment as provided in this Section 8.08 unless at the
time of such acceptance such successor trustee or successor paying agent, as
applicable, shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee or
successor paying agent as provided in this Section 8.08, the Trustee (in the
case of the appointment of a successor paying agent) and the Paying Agent (in
the case of the appointment of a successor trustee) shall mail notice of the
succession of such trustee or paying agent, as applicable, to the Depositor and
the Certificateholders.
Section 8.09 Merger or Consolidation of Trustee or Paying Agent. Any
Person into which the Trustee or the Paying Agent may be merged or converted or
with which it may be consolidated or any Person resulting from any merger,
conversion or consolidation to which the Trustee or the Paying Agent shall be a
party, or any Person succeeding to all or substantially all of the corporate
trust business of the Trustee or the Paying Agent shall be the successor of the
Trustee or the Paying Agent, as applicable, hereunder; provided, that, in the
case of the Trustee, such successor Person shall be eligible under the
provisions of Section 8.06, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding. The Trustee or the Paying Agent, as applicable, will
provide notice of such event to the Master Servicer, the Special Servicer, the
Depositor and the Rating Agencies.
Section 8.10 Appointment of Co-Trustee or Separate Trustee. (a)
Notwithstanding any other provisions hereof, at any time, for the purpose of
meeting any legal requirements of any jurisdiction in which any part of the
Trust Fund or property securing the same may at the time be located, the Trustee
shall have the power and shall execute and deliver all instruments to appoint
one or more Persons approved by the Trustee to act as co-trustee or co-trustees,
jointly with the Trustee, or separate trustee or separate trustees, of all or
any part of the Trust Fund, and to vest in such Person or Persons, in such
capacity, such title to the Trust Fund, or any part thereof, and, subject to the
other provisions of this Section 8.10, such powers, duties, obligations, rights
and trusts as the Master Servicer and the Trustee may consider necessary or
desirable. No co-trustee or separate trustee hereunder shall be required to meet
the terms of eligibility as a successor trustee under Section 8.06 hereunder and
no notice to Holders of Certificates of the appointment of co-trustee(s) or
separate trustee(s) shall be required under Section 8.08 hereof. All co-trustee
fees shall be payable out of the Trust Fund.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Master Servicer or the Special Servicer
hereunder), the Trustee shall be incompetent or unqualified to perform such act
or acts, in which event such rights, powers, duties and obligations (including
the holding of title to the Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then-separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor Trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
Section 8.11 Appointment of Custodians. The Trustee may appoint one
or more Custodians to hold all or a portion of the Mortgage Files as agent for
the Trustee. Each Custodian shall be a depository institution subject to
supervision by federal or state authority, shall have combined capital and
surplus of at least $15,000,000 and shall be qualified to do business in the
jurisdiction in which it holds any Mortgage File and shall not be the Depositor
or any Affiliate of the Depositor. Each Custodian shall be subject to the same
obligations and standard of care as would be imposed on the Trustee hereunder in
connection with the retention of Mortgage Files directly by the Trustee. The
appointment of one or more Custodians shall not relieve the Trustee from any of
its obligations hereunder, and the Trustee shall remain responsible for all acts
and omissions of any Custodian. Any Custodian appointed hereunder must maintain
a fidelity bond and errors and omissions policy in an amount customary for
Custodians which serve in such capacity in commercial mortgage loan
securitization transactions.
Section 8.12 Access to Certain Information. (a) On or prior to the
date of the first sale of any Non-Registered Certificate to an Independent third
party, the Depositor shall provide to the Paying Agent and the Trustee three
copies of any private placement memorandum or other disclosure document used by
the Depositor or its Affiliate in connection with the offer and sale of the
Class of Certificates to which such Non-Registered Certificate relates. In
addition, if any such private placement memorandum or disclosure document is
revised, amended or supplemented at any time following the delivery thereof to
the Trustee and the Paying Agent, the Depositor promptly shall inform the
Trustee of such event and shall deliver to the Paying Agent and the Trustee a
copy of the private placement memorandum or disclosure document, as revised,
amended or supplemented. The Paying Agent (or with respect to item (ii)(j)
below, the Trustee) shall maintain at its offices primarily responsible for
administering the Trust Fund and shall, upon reasonable advance notice, make
available during normal business hours for review by any Holder of a
Certificate, the Depositor, the Master Servicer, the Special Servicer, any
Rating Agency or any other Person to whom the Paying Agent (or the Trustee, if
applicable) believes such disclosure is appropriate, originals or copies of the
following items: (i) in the case of a Holder or prospective transferee of a
Non-Registered Certificate, any private placement memorandum or other disclosure
document relating to the Class of Certificates to which such Non-Registered
Certificate belongs, in the form most recently provided to the Paying Agent and
(ii) in all cases (a) this Agreement and any amendments hereto entered into
pursuant to Section 11.01, (b) all statements required to be delivered to
Certificateholders of the relevant Class pursuant to Section 4.02 since the
Closing Date, (c) all Officer's Certificates delivered to the Paying Agent and
the Trustee since the Closing Date pursuant to Section 3.13, (d) all
accountants' reports delivered to the Trustee and the Paying Agent since the
Closing Date pursuant to Section 3.14, (e) any inspection report prepared by the
Master Servicer, Sub-Servicer or Special Servicer, as applicable, and delivered
to the Trustee and the Paying Agent and Master Servicer in respect of each
Mortgaged Property pursuant to Section 3.12(a), (f) as to each Mortgage Loan and
Companion Loan pursuant to which the related Mortgagor is required to deliver
such items or the Special Servicer has otherwise acquired such items, the most
recent annual operating statement and rent roll of the related Mortgaged
Property and financial statements of the related Mortgagor and any other reports
of the Mortgagor collected by the Master Servicer, Sub-Servicer or Special
Servicer, as applicable, and delivered to the Paying Agent pursuant to Section
3.12(c), together with the accompanying written reports to be prepared by the
Special Servicer and delivered to the Paying Agent pursuant to Section 3.12(b),
(g) any and all notices, reports and Environmental Assessments delivered to the
Paying Agent with respect to any Mortgaged Property securing a Defaulted
Mortgage Loan and Companion Loan as to which the environmental testing
contemplated by Section 3.09(c) revealed that either of the conditions set forth
in clauses (i) and (ii) of the first sentence thereof was not satisfied (but
only for so long as such Mortgaged Property or the related Mortgage Loan are
part of the Trust Fund), (h) any and all modifications, waivers and amendments
of the terms of a Mortgage Loan and Companion Loan entered into by the Master
Servicer or the Special Servicer and delivered to the Paying Agent pursuant to
Section 3.20 (but only for so long as the affected Mortgage Loan and Companion
Loan is part of the Trust Fund), (i) any and all Officer's Certificates
delivered to the Paying Agent to support the Master Servicer's determination
that any P&I Advance or Servicing Advance was or, if made, would be a
Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance, as the case may
be, (j) any and all of the Mortgage Loan and Companion Loan documents contained
in the Mortgage File, (k) any and all Appraisals obtained pursuant to the
definition of "Appraisal Reduction" herein, (l) information regarding the
occurrence of Servicing Transfer Events as to the Mortgage Loans and (m) any and
all Sub-Servicing Agreements and any amendments thereto and modifications
thereof. Copies of any and all of the foregoing items will be available from the
Paying Agent upon request; provided, however, that the Paying Agent (or the
Trustee, if applicable) shall be permitted to require payment of a sum
sufficient to cover the reasonable costs and expenses of providing such copies,
except in the case of copies provided to the Directing Certificateholder or the
Rating Agencies, which shall be free of charge (except for extraordinary or
duplicate requests). In addition, without limiting the generality of the
foregoing, any Class J, Class K, Class L, Class M, Class N, Class O and Class NR
Certificateholder may upon request from the Paying Agent obtain a copy of any
factual report (other than the Asset Status Report) delivered to the Rating
Agencies under this Agreement.
(b) The Paying Agent shall make available to certain financial
market publishers, which initially shall be Bloomberg, L.P., Xxxxx, LLC and
Intex Solutions LLC on a monthly basis all CMSA reports and any other reports
required to be delivered by the Paying Agent pursuant to Article IV hereof. If
any such information is provided on or before November 14, 2005, the Paying
Agent shall make the Prospectus available to Bloomberg, L.P., Xxxxx, LLC and
Intex Solutions, Inc.
(c) Notwithstanding anything to the contrary herein, in addition to
the reports and information made available and distributed pursuant to the terms
of this Agreement (including the information set forth in Section 8.12(a)), the
Paying Agent shall, in accordance with such reasonable rules and procedures as
each may adopt (which may include the requirement that an agreement that
provides that such information shall be used solely for purposes of evaluating
the investment characteristics of the Certificates be executed), also provide
the reports available to Certificateholders pursuant to Section 4.02, as well as
certain additional information received by the Paying Agent, to any
Certificateholder, the Underwriters, the Placement Agents, any Certificate Owner
or any prospective investor identified as such by a Certificate Owner or
Underwriter, that requests such reports or information; provided that the Paying
Agent, as the case may be, shall be permitted to require payment of a sum
sufficient to cover the reasonable costs and expenses of providing copies of
such reports or information.
(d) With respect to any information furnished by the Paying Agent
pursuant to this Section 8.12, the Paying Agent shall be entitled to indicate
the source of such information and the Paying Agent may affix thereto any
disclaimer it deems appropriate in its discretion. The Paying Agent shall notify
Certificateholders of the availability of any such information in any manner as
it, in its sole discretion, may determine. In connection with providing access
to or copies of the items described in the preceding paragraph, the Paying Agent
may require (a) in the case of Certificate Owners, a confirmation executed by
the requesting Person substantially in form and substance reasonably acceptable
to the Paying Agent, as applicable, generally to the effect that such Person is
a beneficial holder of Certificates, is requesting the information solely for
use in evaluating such Person's investment in the Certificates and will
otherwise keep such information confidential and (b) in the case of a
prospective purchaser, confirmation executed by the requesting Person in form
and substance reasonably acceptable to the Paying Agent, generally to the effect
that such Person is a prospective purchaser of a Certificate or an interest
therein, is requesting the information solely for use in evaluating a possible
investment in Certificates and will otherwise keep such information
confidential. The Paying Agent shall not be liable for the dissemination of
information in accordance with this Agreement.
Section 8.13 Representations and Warranties of the Trustee. (a) The
Trustee hereby represents and warrants to the Depositor, the Master Servicer,
the Special Servicer and the Paying Agent and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Trustee is a national banking association duly organized
under the laws of the United States, duly organized, validly existing and
in good standing under the laws thereof;
(ii) The execution and delivery of this Agreement by the Trustee,
and the performance and compliance with the terms of this Agreement by the
Trustee, will not violate the Trustee's charter and 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 Trustee has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Trustee, enforceable against the Trustee in
accordance with the terms hereof, subject to (a) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally and the rights of creditors of
national banking associations specifically and (b) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law;
(v) The Trustee is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Trustee's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Trustee to perform its obligations under this Agreement or the
financial condition of the Trustee; and
(vi) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee which would prohibit the Trustee
from entering into this Agreement or, in the Trustee's good faith and
reasonable judgment, is likely to materially and adversely affect either
the ability of the Trustee to perform its obligations under this Agreement
or the financial condition of the Trustee.
(b) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Trustee, or compliance by the Trustee with, this Agreement or
the consummation of the transactions contemplated by this Agreement, except for
any consent, approval, authorization or order which has not been obtained or
cannot be obtained prior to the actual performance by the Trustee of its
obligations under this Agreement, and which, if not obtained would not have a
materially adverse effect on the ability of the Trustee to perform its
obligations hereunder.
Section 8.14 Representations and Warranties of the Paying Agent.
(a) The Paying Agent hereby represents and warrants to the
Depositor, the Master Servicer, the Special Servicer and the Trustee and for the
benefit of the Certificateholders, as of the Closing Date, that:
(i) The Paying Agent is a national banking association duly
organized under the laws of the United States, duly organized, validly
existing and in good standing under the laws thereof;
(ii) The execution and delivery of this Agreement by the Paying
Agent, and the performance and compliance with the terms of this Agreement
by the Paying Agent, will not violate the Paying Agent's charter and
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 Paying Agent has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Paying Agent, enforceable against the Paying
Agent in accordance with the terms hereof, subject to (a) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally and the rights of
creditors of national banking associations specifically and (b) general
principles of equity, regardless of whether such enforcement is considered
in a proceeding in equity or at law;
(v) The Paying Agent is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Paying Agent's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Paying Agent to perform its obligations under this
Agreement or the financial condition of the Paying Agent; and
(vi) No litigation is pending or, to the best of the Paying Agent's
knowledge, threatened against the Paying Agent which would prohibit the
Paying Agent from entering into this Agreement or, in the Paying Agent's
good faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Paying Agent to perform its obligations
under this Agreement or the financial condition of the Paying Agent.
(b) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Paying Agent, or compliance by the Paying Agent with, this
Agreement or the consummation of the transactions contemplated by this
Agreement, except for any consent, approval, authorization or order which has
not been obtained or cannot be obtained prior to the actual performance by the
Paying Agent of its obligations under this Agreement, and which, if not obtained
would not have a materially adverse effect on the ability of the Paying Agent to
perform its obligations hereunder.
[End of Article VIII]
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Repurchase or Liquidation of All
Mortgage Loans. Subject to Section 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Paying Agent, the
Depositor, the Master Servicer, the Special Servicer and the Trustee (other than
the obligations of the Paying Agent to provide for and make payments to
Certificateholders as hereafter set forth) shall terminate upon payment (or
provision for payment) to the Certificateholders of all amounts held by the
Paying Agent and required hereunder to be so paid on the Distribution Date
following the earlier to occur of (i) the final payment (or related Advance) or
other liquidation of the last Mortgage Loan or REO Property subject thereto or
(ii) the purchase or other liquidation by the Holders of the majority of the
Controlling Class, the Special Servicer, the Master Servicer or the Holders of
the Class LR Certificates, in that order of priority, of all the Mortgage Loans
and the Trust Fund's portion of each REO Property remaining in the Trust Fund at
a price equal to (a) the sum of (1) the aggregate Purchase Price of all the
Mortgage Loans (exclusive of REO Loans) included in the Trust Fund, (2) the
Appraised Value of the Trust Fund's portion of each REO Property, if any,
included in the Trust Fund (such Appraisals in clause (a)(2) to be conducted by
an Independent MAI-designated appraiser selected and mutually agreed upon by the
Master Servicer and the Trustee, and approved by more than 50% of the Voting
Rights of the Classes of Certificates then outstanding (other than the
Controlling Class unless the Controlling Class is the only Class of Certificates
then outstanding)) (which approval shall be deemed given unless more than 50% of
such Certificateholders object within 20 days of receipt of notice thereof) and
(3) the reasonable out-of-pocket expenses of the Master Servicer with respect to
such termination, unless the Master Servicer is the purchaser of such Mortgage
Loans, minus (b) solely in the case where the Master Servicer is effecting such
purchase, the aggregate amount of unreimbursed Advances, together with any
interest accrued and payable to the Master Servicer in respect of such Advances
in accordance with Sections 3.03(d) and 4.03(d) and any unpaid Servicing Fees,
remaining outstanding (which items shall be deemed to have been paid or
reimbursed to the Master Servicer in connection with such purchase) and (iii)
exchange by the Sole Certificateholder pursuant to the terms of the immediately
succeeding paragraph, the final payment or other liquidation (or any advance
with respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; provided, however, that in no event shall the trust created hereby
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the United
States to the Court of St. James's, living on the date hereof.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder shall have the right to exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and the Trust Fund's portion of each REO Property remaining in the Trust
Fund as contemplated by clause (iii) of the first paragraph of this Section 9.01
by giving written notice to all the parties hereto no later than 60 days prior
to the anticipated date of exchange. In the event that the Sole
Certificateholder elects to exchange all of its Certificates (other than the
Class S and the Residual Certificates) for all of the Mortgage Loans and the
Trust Fund's portion of each REO Property remaining in the Trust in accordance
with the preceding sentence, such Sole Certificateholder, not later than the
Distribution Date on which the final distribution on the Certificates is to
occur, shall deposit in the Certificate Account an amount in immediately
available funds equal to all amounts due and owing to the Depositor, the Master
Servicer, the Special Servicer, the Trustee and the Paying Agent hereunder
through the date of the liquidation of the Trust Fund that may be withdrawn from
the Certificate Account, or an escrow account acceptable to the respective
parties hereto, pursuant to Section 3.05(a) or that may be withdrawn from the
Distribution Account pursuant to Section 3.05(a), but only to the extent that
such amounts are not already on deposit in the Certificate Account. In addition,
the Master Servicer shall transfer all amounts required to be transferred to the
Lower-Tier Distribution Account on the P&I Advance Date related to such
Distribution Date in which the final distribution on the Certificates is to
occur from the Certificate Account pursuant to the first paragraph of Section
3.04(b). Upon confirmation that such final deposits have been made and following
the surrender of all its Certificates (other than the Class S and the Residual
Certificates) on the final Distribution Date, the Trustee shall, upon receipt of
a Request for Release from the Master Servicer, release or cause to be released
to the Sole Certificateholder or any designee thereof, the Mortgage Files for
the remaining Mortgage Loans and shall execute all assignments, endorsements and
other instruments furnished to it by the Sole Certificateholder as shall be
necessary to effectuate transfer of the Mortgage Loans and REO Properties
remaining in the Trust Fund, and the Trust Fund shall be liquidated in
accordance with Section 9.02. Such transfers shall be subject to any rights of
any Sub-Servicers to service or perform select servicing functions with respect
to the Mortgage Loans. Solely for federal income tax purposes, the Sole
Certificateholder shall be deemed to have purchased the assets of the Lower-Tier
REMIC for an amount equal to the remaining Certificate Balance of its
Certificates (other than the Class S and the Residual Certificates), plus
accrued, unpaid interest with respect thereto, and the Trustee shall credit such
amounts against amounts distributable in respect of such Certificates and
Related Uncertificated Lower-Tier Interests.
The obligations and responsibilities under this Agreement of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent and the Companion Paying Agent shall terminate with respect to any
Companion Loan to the extent (i) its related AB Mortgage Loan has been paid in
full or is no longer part of the Trust Fund and (ii) no amounts payable by the
related Companion Holder to or for the benefit of the Trust or any party hereto
in accordance with the related Intercreditor Agreement remain due and owing.
The Holders of the majority of the Controlling Class, the Special
Servicer, the Master Servicer or the Holders of the Class LR Certificates, in
that order of priority, may, at their option, elect to purchase all of the
Mortgage Loans (and all property acquired through exercise of remedies in
respect of any Mortgage Loan) and the Trust Fund's portion of each REO Property
remaining in the Trust Fund as contemplated by clause (i) of the preceding
paragraph by giving written notice to the Trustee, the Paying Agent and the
other parties hereto no later than 60 days prior to the anticipated date of
purchase; provided, however, that the Master Servicer, the Special Servicer, the
Holders of the Controlling Class or the Holders of the Class LR Certificates may
so elect to purchase all of the Mortgage Loans and the Trust Fund's portion of
each REO Property remaining in the Trust Fund only on or after the first
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and the Trust Fund's portion of any REO Loans remaining in the
Trust Fund is less than 1% of the aggregate Cut-off Date Principal Balance of
the Mortgage Loans set forth in the Preliminary Statement. In the event that the
Master Servicer, the Special Servicer, the Holders of the Controlling Class or
the Holders of the Class LR Certificates purchases all of the Mortgage Loans and
the Trust Fund's portion of each REO Property remaining in the Trust Fund in
accordance with the preceding sentence, the Master Servicer, the Special
Servicer, the Holders of the Controlling Class or the Holders of the Class LR
Certificates, as applicable, shall deposit in the Lower-Tier Distribution
Account not later than the P&I Advance Date relating to the Distribution Date on
which the final distribution on the Certificates is to occur, an amount in
immediately available funds equal to the above-described purchase price
(exclusive of any portion thereof payable to any Person other than the
Certificateholders pursuant to Section 3.05(a), which portion shall be deposited
in the Certificate Account). In addition, the Master Servicer shall transfer to
the Lower-Tier Distribution Account all amounts required to be transferred
thereto on such P&I Advance Date from the Certificate Account pursuant to the
first paragraph of Section 3.04(b), together with any other amounts on deposit
in the Certificate Account that would otherwise be held for future distribution.
Upon confirmation that such final deposits and payments have been made, the
Trustee shall release or cause to be released to the Master Servicer, the
Special Servicer, the Holders of the Controlling Class or the Holders of the
Class LR Certificates, as applicable, the Mortgage Files for the remaining
Mortgage Loans and shall execute all assignments, endorsements and other
instruments furnished to it by the Master Servicer, the Special Servicer, the
Holders of the Controlling Class or the Holders of the Class LR Certificates, as
applicable, as shall be necessary to effectuate transfer of the Mortgage Loans
and REO Properties remaining in the Trust Fund.
For purposes of this Section 9.01, the Holders of the majority of
the Controlling Class shall have the first option to terminate the Trust Fund,
then the Special Servicer, then the Master Servicer, and then the Holders of the
Class LR Certificates. For purposes of this Section 9.01, the Directing
Certificateholder, with the consent of the Holders of the Controlling Class,
shall act on behalf of the Holders of the Controlling Class in purchasing the
assets of the Trust Fund and terminating the Trust.
Notice of any termination pursuant to this Section 9.01 shall be
given promptly by the Paying Agent by letter to the Certificateholders and each
Rating Agency and, if not previously notified pursuant to this Section 9.01, to
the other parties hereto mailed (a) in the event such notice is given in
connection with the purchase of all of the Mortgage Loans and each REO Property
remaining in the Trust Fund, not earlier than the 15th day and not later than
the 25th day of the month next preceding the month of the final distribution on
the Certificates, or (b) otherwise during the month of such final distribution
on or before the P&I Advance Determination Date in such month, in each case
specifying (i) the Distribution Date upon which the Trust Fund will terminate
and final payment of the Certificates will be made, (ii) the amount of any such
final payment and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Certificates at the offices of the Certificate Registrar or
such other location therein designated.
After transferring the Lower-Tier Distribution Amount and the amount
of any Yield Maintenance Charges distributable pursuant to Section 4.01(d) to
the Upper-Tier Distribution Account, in each case pursuant to Section 3.04(b),
and upon presentation and surrender of the Certificates by the
Certificateholders on the final Distribution Date, the Paying Agent shall
distribute to each Certificateholder so presenting and surrendering its
Certificates such Certificateholder's Percentage Interest of that portion of the
amounts then on deposit in the Upper-Tier Distribution Account that are
allocable to payments on the Class of Certificates so presented and surrendered
and to the Holders of the Class S Certificates any amounts remaining on deposit
in the Excess Interest Distribution Account. Amounts transferred from the
Lower-Tier Distribution Account to the Upper-Tier Distribution Account as of the
final Distribution Date (exclusive of any portion of such amounts payable or
reimbursable to any Person pursuant to clause (ii) of Section 3.05(e)) shall be
allocated for these purposes, in the amounts and in accordance with the priority
set forth in Sections 4.01(b), 4.01(d) and 4.01(e) and shall be distributed in
termination and liquidation of the Uncertificated Lower-Tier Interests and the
Class LR Certificates in accordance with Sections 4.01(b), 4.01(d) and 4.01(e).
Any funds not distributed on such Distribution Date shall be set aside and held
uninvested in trust for the benefit of the Certificateholders not presenting and
surrendering their Certificates in the aforesaid manner and shall be disposed of
in accordance with this Section 9.01 and Section 4.01(g).
Section 9.02 Additional Termination Requirements. In the event the
Master Servicer, the Special Servicer, the Holders of the Controlling Class or
the Holders of the Class LR Certificates purchases all of the Mortgage Loans and
the Trust Fund's portion of each REO Property remaining in the Trust Fund as
provided in Section 9.01, the Trust Fund shall be terminated in accordance with
the following additional requirements, which meet the definition of a "qualified
liquidation" in Section 860F(a)(4) of the Code:
(a) the Paying Agent shall specify the date of adoption of the plan
of complete liquidation (which shall be the date of mailing of the notice
specified in Section 9.01) in a statement attached to each of the Upper-Tier
REMIC's and the Lower-Tier REMIC's final Tax Return pursuant to Treasury
Regulations Section 1.860F-1;
(b) during the 90-day liquidation period and at or prior to the time
of the making of the final payment on the Certificates, the Paying Agent on
behalf of the Trustee shall sell all of the assets of the Trust Fund to the
Master Servicer, the Special Servicer, the Holders of the Controlling Class or
the Holders of the Class LR Certificates, as applicable, for cash; and
(c) within such 90-day liquidation period and immediately following
the making of the final payment on the Uncertificated Lower-Tier Interests and
the Certificates, the Paying Agent shall distribute or credit, or cause to be
distributed or credited, to the Holders of the Class LR Certificates (in the
case of the Lower-Tier REMIC) and the Class R Certificates (in the case of the
Upper-Tier REMIC) all cash on hand (other than cash retained to meet claims),
and the Trust Fund and each of the Lower-Tier REMIC and the Upper-Tier REMIC
shall terminate at that time.
[End of Article IX]
ARTICLE X
ADDITIONAL REMIC PROVISIONS
Section 10.01 REMIC Administration. (a) The Paying Agent shall make
elections or cause elections to be made to treat each of the Lower-Tier REMIC
and the Upper-Tier REMIC as a REMIC under the Code and, if necessary, under
Applicable State and Local Tax Law. Each such election will be made on Form 1066
or other appropriate federal tax return for the taxable year ending on the last
day of the calendar year in which the Uncertificated Lower-Tier Interests and
the Certificates are issued. For the purposes of the REMIC election in respect
of the Upper-Tier REMIC, each Class of the Regular Certificates shall be
designated as the "regular interests" and the Class R Certificates shall be
designated as the sole class of "residual interests" in the Upper-Tier REMIC.
For purposes of the REMIC election in respect of the Lower-Tier REMIC, each
Class of Uncertificated Lower-Tier Interests shall be designated as the "regular
interests" and the Class LR Certificates shall be designated as the sole class
of "residual interests" in the Lower-Tier REMIC. None of the Special Servicer,
the Master Servicer nor the Trustee shall permit the creation of any "interests"
(within the meaning of Section 860G of the Code) in the Lower-Tier REMIC or the
Upper-Tier REMIC other than the foregoing interests.
(b) The Closing Date is hereby designated as the "startup day" of
each of the Lower-Tier REMIC and the Upper-Tier REMIC within the meaning of
Section 860G(a)(9) of the Code.
(c) The Paying Agent shall act on behalf of each REMIC in relation
to any tax matter or controversy involving any REMIC and shall represent each
REMIC in any administrative or judicial proceeding relating to an examination or
audit by any governmental taxing authority with respect thereto. The legal
expenses, including without limitation attorneys' or accountants' fees, and
costs of any such proceeding and any liability resulting therefrom shall be
expenses of the Trust Fund and the Paying Agent shall be entitled to
reimbursement therefor out of amounts attributable to the Mortgage Loans and any
REO Properties on deposit in the Certificate Account as provided by Section
3.05(a) unless such legal expenses and costs are incurred by reason of the
Paying Agent's willful misfeasance, bad faith or gross negligence. The Holder of
the largest Percentage Interest in each of the (i) Class R and (ii) Class LR
Certificates shall be designated, in the manner provided under Treasury
Regulations Section 1.860F-4(d) and temporary Treasury Regulations Section
301.6231(a)(7)-1T, as the "tax matters person" of the (i) Upper-Tier REMIC and
(ii) the Lower-Tier REMIC, respectively. By their acceptance thereof, the
Holders of the largest Percentage Interest in each of the (i) Class R and (ii)
Class LR Certificates hereby agrees to irrevocably appoint the Paying Agent as
their agent to perform all of the duties of the "tax matters person" for the (i)
Upper-Tier REMIC and (ii) the Lower-Tier REMIC, respectively.
(d) The Paying Agent shall prepare or cause to be prepared and shall
file, or cause to be filed, all of the Tax Returns that it determines are
required with respect to each of the Lower-Tier REMIC and the Upper-Tier REMIC
created hereunder, and shall cause the Trustee to sign such Tax Returns in a
timely manner. The ordinary expenses of preparing such returns shall be borne by
the Trustee without any right of reimbursement therefor. The Paying Agent agrees
to indemnify and hold harmless the Trustee with respect to any tax or liability
arising from the Trustee's signing of Tax Returns that contain errors or
omissions, if such errors or omissions are caused by the negligence, bad faith
or willful misconduct of the Paying Agent.
(e) The Paying Agent shall provide or cause to be provided (i) to
any Transferor of a Class R Certificate or Class LR Certificate such information
as is necessary for the application of any tax relating to the transfer of such
Class R Certificate or Class LR Certificate to any Person who is a Disqualified
Organization, or in the case of a Transfer to an Agent thereof, to such Agent,
(ii) to the Certificateholders such information or reports as are required by
the Code or the REMIC Provisions including reports relating to interest,
original issue discount and market discount or premium (using the Prepayment
Assumption) and (iii) to the Internal Revenue Service on Form 8811, within 30
days after the Closing Date, the name, title, address and telephone number of
the "tax matters person" who will serve as the representative of each of the
Lower-Tier REMIC and the Upper-Tier REMIC created hereunder.
(f) The Paying Agent shall take such actions and shall cause the
Trust Fund to take such actions as are reasonably within the Paying Agent's
control and the scope of its duties more specifically set forth herein as shall
be necessary to maintain the status of each of the Lower-Tier REMIC and the
Upper-Tier REMIC as a REMIC under the REMIC Provisions and the Trustee shall
assist the Paying Agent to the extent reasonably requested by the Paying Agent
to do so. Neither the Master Servicer nor the Special Servicer shall knowingly
or intentionally take any action, cause the Trust Fund to take any action or
fail to take (or fail to cause to be taken) any action reasonably within its
control and the scope of duties more specifically set forth herein, that, under
the REMIC Provisions, if taken or not taken, as the case may be, could (i)
endanger the status of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC
or (ii) result in the imposition of a tax upon the Lower-Tier REMIC or the
Upper-Tier REMIC or the Trust Fund (including but not limited to the tax on
"prohibited transactions" as defined in Section 860F(a)(2) of the Code and the
tax on contributions to a REMIC set forth in Section 860G(d) of the Code, but
not including the tax on "net income from foreclosure property") (either such
event an "Adverse REMIC Event") unless the Paying Agent receives an Opinion of
Counsel (at the expense of the party seeking to take such action or, if such
party fails to pay such expense, and the Paying Agent determines that taking
such action is in the best interest of the Trust Fund and the
Certificateholders, at the expense of the Trust Fund, but in no event at the
expense of the Paying Agent or the Trustee) to the effect that the contemplated
action will not, with respect to the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC created hereunder, endanger such status or, unless the Paying
Agent determines in its sole discretion to indemnify the Trust Fund against such
tax, result in the imposition of such a tax (not including a tax on "net income
from foreclosure property"). The Trustee shall not take or fail to take any
action (whether or not authorized hereunder) as to which the Paying Agent has
advised it in writing that it has received an Opinion of Counsel to the effect
that an Adverse REMIC Event could occur with respect to such action. In
addition, prior to taking any action with respect to the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC or any of their respective assets, or
causing the Trust Fund, the Lower-Tier REMIC or the Upper-Tier REMIC to take any
action, which is not expressly permitted under the terms of this Agreement, the
Trustee will consult with the Paying Agent or its designee, in writing, with
respect to whether such action could cause an Adverse REMIC Event to occur with
respect to the Trust Fund, the Lower-Tier REMIC or the Upper-Tier REMIC and the
Trustee shall not take any such action or cause the Trust Fund, the Lower-Tier
REMIC or the Upper-Tier REMIC to take any such action as to which the Paying
Agent has advised it in writing that an Adverse REMIC Event could occur. The
Paying Agent may consult with counsel to make such written advice, and the cost
of same shall be borne by the party seeking to take the action not expressly
permitted by this Agreement, but in no event at the expense of the Paying Agent
or the Trustee. At all times as may be required by the Code, the Paying Agent
will to the extent within its control and the scope of its duties more
specifically set forth herein, maintain substantially all of the assets of each
of the Lower-Tier REMIC and the Upper-Tier REMIC as "qualified mortgages" as
defined in Section 860G(a)(3) of the Code and "permitted investments" as defined
in Section 860G(a)(5) of the Code.
(g) In the event that any applicable federal, state or local tax,
including interest, penalties or assessments, additional amounts or additions to
tax, is imposed on the Lower-Tier REMIC or the Upper-Tier REMIC, such tax shall
be charged against amounts otherwise distributable to the Holders of the
Certificates, except as provided in the last sentence of this Section 10.01(g);
provided that with respect to the estimated amount of tax imposed on any "net
income from foreclosure property" pursuant to Section 860G(c) of the Code or any
similar tax imposed by a state or local tax authority, the Special Servicer
shall retain in the related REO Account a reserve for the payment of such taxes
in such amounts and at such times as it shall deem appropriate (or as advised by
the Paying Agent in writing), and shall remit to the Master Servicer such
reserved amounts as the Master Servicer shall request in order to pay such
taxes. Except as provided in the preceding sentence, the Master Servicer shall
withdraw from the Certificate Account sufficient funds to pay or provide for the
payment of, and to actually pay, such tax as is estimated to be legally owed by
the Lower-Tier REMIC or the Upper-Tier REMIC (but such authorization shall not
prevent the Paying Agent from contesting, at the expense of the Trust Fund
(other than as a consequence of a breach of its obligations under this
Agreement), any such tax in appropriate proceedings, and withholding payment of
such tax, if permitted by law, pending the outcome of such proceedings). The
Paying Agent is hereby authorized to and shall segregate, into a separate
non-interest bearing account, the net income from any "prohibited transaction"
under Section 860F(a) of the Code or the amount of any taxable contribution to
the Lower-Tier REMIC or the Upper-Tier REMIC after the Startup Day that is
subject to tax under Section 860G(d) of the Code and use such income or amount,
to the extent necessary, to pay such prohibited transactions tax. To the extent
that any such tax (other than any such tax paid in respect of "net income from
foreclosure property") is paid to the Internal Revenue Service or applicable
state or local tax authorities, the Paying Agent shall retain an equal amount
from future amounts otherwise distributable to the Holders of Residual
Certificates (as applicable) and shall distribute such retained amounts, (x) in
the case of the Uncertificated Lower-Tier REMIC Interests, to the Upper-Tier
REMIC to the extent they are fully reimbursed for any Collateral Support Deficit
arising therefrom and then to the Holders of the Class LR Certificates in the
manner specified in Section 4.01(b) and (y) in the case of the Upper-Tier REMIC,
to the Holders of Class A, Class A-J, Class B, Class C, Class D, Class E, Class
F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class
NR, Class X-1 and Class X-2 Certificates in the manner specified in Section
4.01(a), to the extent they are fully reimbursed for any Collateral Support
Deficit, arising therefrom and then to the Holders of the Class R Certificates.
None of the Trustee, the Paying Agent, the Master Servicer or the Special
Servicer shall be responsible for any taxes imposed on the Lower-Tier REMIC or
the Upper-Tier REMIC except to the extent such taxes arise as a consequence of a
breach of their respective obligations under this Agreement which breach
constitutes willful misfeasance, bad faith, or negligence by such party.
(h) The Paying Agent shall, for federal income tax purposes,
maintain or cause to be maintained books and records with respect to each of the
Lower-Tier REMIC and the Upper-Tier REMIC on a calendar year and on an accrual
basis or as otherwise may be required by the REMIC Provisions.
(i) Following the Startup Day, neither the Paying Agent nor the
Trustee shall accept any contributions of assets to the Lower-Tier REMIC and the
Upper-Tier REMIC unless the Paying Agent and the Trustee shall have received an
Opinion of Counsel (at the expense of the party seeking to make such
contribution) to the effect that the inclusion of such assets in the Lower-Tier
REMIC or the Upper-Tier REMIC will not (i) cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC at any time that any
Uncertificated Lower-Tier Interests or Certificates are outstanding or (ii)
subject any of the Trust Fund or the Lower-Tier REMIC or the Upper-Tier REMIC to
any tax under the REMIC Provisions or other applicable provisions of federal,
state and local law or ordinances.
(j) Neither the Paying Agent nor the Trustee shall enter into any
arrangement by which the Trust Fund or the Lower-Tier REMIC or the Upper-Tier
REMIC will receive a fee or other compensation for services nor permit the Trust
Fund or the Lower-Tier REMIC or the Upper-Tier REMIC to receive any income from
assets other than "qualified mortgages" as defined in Section 860G(a)(3) of the
Code or "permitted investments" as defined in Section 860G(a)(5) of the Code.
(k) Solely for the purposes of Treasury Regulations Section
1.860G-1(a)(4)(iii), the "latest possible maturity date" by which the
Certificate Balance or Notional Amount of each Class of Certificates (other than
the Class X-2 Certificates) representing a "regular interest" in the Upper-Tier
REMIC and by which the Lower-Tier Principal Amount of each Class of
Uncertificated Lower-Tier Interests representing a "regular interest" in the
Lower-Tier REMIC would be reduced to zero is the Rated Final Distribution Date.
The "latest possible maturity date" of the Class X-2 Certificates is the Class
X-2 Termination Date.
(l) None of the Trustee, the Paying Agent, the Master Servicer or
the Special Servicer, as applicable, shall sell, dispose of or substitute for
any of the Mortgage Loans (except in connection with (i) the default, imminent
default or foreclosure of a Mortgage Loan, including but not limited to, the
acquisition or sale of a Mortgaged Property acquired by foreclosure or deed in
lieu of foreclosure, (ii) the bankruptcy of the Trust Fund, (iii) the
termination of the Trust Fund pursuant to Article IX of this Agreement or (iv) a
purchase of Mortgage Loans pursuant to Article II or III of this Agreement) or
acquire any assets for the Trust Fund or the Lower-Tier REMIC or the Upper-Tier
REMIC or sell or dispose of any investments in the Certificate Account or the
REO Account for gain unless it has received an Opinion of Counsel that such
sale, disposition or substitution will not (a) affect adversely the status of
the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or (b) unless the
Trustee, the Paying Agent, the Master Servicer or the Special Servicer, as
applicable, has determined in its sole discretion to indemnify the Trust Fund
against such tax, cause the Trust Fund or the Lower-Tier REMIC or the Upper-Tier
REMIC to be subject to a tax on "prohibited transactions" pursuant to the REMIC
Provisions.
Section 10.02 Use of Agents. (a) The Trustee shall execute all of
its obligations and duties under this Article X through its Corporate Trust
Office. The Trustee may execute any of its obligations and duties under this
Article X either directly or by or through agents or attorneys. The Trustee
shall not be relieved of any of its duties or obligations under this Article X
by virtue of the appointment of any such agents or attorneys.
(b) The Paying Agent may execute any of its obligations and duties
under this Article X either directly or by or through agents or attorneys. The
Paying Agent shall not be relieved of any of its duties or obligations under
this Article X by virtue of the appointment of any such agents or attorneys.
Section 10.03 Depositor, Master Servicer and Special Servicer to
Cooperate with Paying Agent. (a) The Depositor shall provide or cause to be
provided to the Paying Agent within ten (10) days after the Depositor receives a
request from the Paying Agent, all information or data that the Paying Agent
reasonably determines to be relevant for tax purposes as to the valuations and
issue prices of the Certificates, including, without limitation, the price,
yield, Prepayment Assumptions and projected cash flow of the Certificates.
(b) The Master Servicer and the Special Servicer shall each furnish
such reports, certifications and information, and upon reasonable notice and
during normal business hours, access to such books and records maintained
thereby, as may relate to the Certificates or the Trust Fund and as shall be
reasonably requested by the Paying Agent in order to enable it to perform its
duties hereunder.
Section 10.04 Appointment of REMIC Administrators. (a) The Paying
Agent may appoint at the Paying Agent's expense, one or more REMIC
Administrators, which shall be authorized to act on behalf of the Paying Agent
in performing the functions set forth in Section 10.01 herein. The Paying Agent
shall cause any such REMIC Administrator to execute and deliver to the Paying
Agent an instrument in which such REMIC Administrator shall agree to act in such
capacity, with the obligations and responsibilities herein. The appointment of a
REMIC Administrator shall not relieve the Paying Agent from any of its
obligations hereunder, and the Paying Agent shall remain responsible and liable
for all acts and omissions of the REMIC Administrator. Each REMIC Administrator
must be acceptable to the Paying Agent and must be organized and doing business
under the laws of the United States of America or of any State and be subject to
supervision or examination by federal or state authorities. In the absence of
any other Person appointed in accordance herewith acting as REMIC Administrator,
the Paying Agent hereby agrees to act in such capacity in accordance with the
terms hereof. If LaSalle Bank National Association is removed as Paying Agent,
then LaSalle Bank National Association shall be terminated as REMIC
Administrator.
(b) Any Person into which any REMIC Administrator may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any REMIC Administrator shall be a
party, or any Person succeeding to the corporate agency business of any REMIC
Administrator, shall continue to be the REMIC Administrator without the
execution or filing of any paper or any further act on the part of the Paying
Agent or the REMIC Administrator.
(c) Any REMIC Administrator may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee, the
Certificate Registrar, the Paying Agent, the Master Servicer, the Special
Servicer and the Depositor. The Paying Agent may at any time terminate the
agency of any REMIC Administrator by giving written notice of termination to
such REMIC Administrator, the Master Servicer, the Certificate Registrar and the
Depositor. Upon receiving a notice of resignation or upon such a termination, or
in case at any time any REMIC Administrator shall cease to be eligible in
accordance with the provisions of this Section 10.04, the Paying Agent may
appoint a successor REMIC Administrator, in which case the Paying Agent shall
given written notice of such appointment to the Master Servicer and the
Depositor and shall mail notice of such appointment to all Certificateholders;
provided, however, that no successor REMIC Administrator shall be appointed
unless eligible under the provisions of this Section 10.04. Any successor REMIC
Administrator upon acceptance of its appointment hereunder shall become vested
with all the rights, powers, duties and responsibilities of its predecessor
hereunder, with like effect as if originally named as REMIC Administrator. No
REMIC Administrator shall have responsibility or liability for any action taken
by it as such at the direction of the Paying Agent.
[End of Article X]
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment. (a) This Agreement may be amended from time
to time by the parties hereto, without the consent of any of the
Certificateholders or the Companion Holders:
(i) to cure any ambiguity to the extent that it does not materially
and adversely affect any Certificateholder or Companion Holder;
(ii) to cause the provisions in this Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus
with respect to the Certificates, the Trust or this Agreement or to
correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of
any Certificateholder or Companion Holder;
(iii) to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust
Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC,
or the Grantor Trust as a grantor trust at all times that any Certificate
is outstanding or to avoid or minimize the risk of the imposition of any
tax on the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC pursuant to the Code that would be a claim against the Trust Fund or
either of the Lower-Tier REMIC or the Upper-Tier REMIC, provided that the
Trustee has received an Opinion of Counsel (at the expense of the party
requesting such amendment) to the effect that (a) such action is necessary
or desirable to maintain such qualification or to avoid or minimize the
risk of the imposition of any such tax and (b) such action will not
adversely affect in any material respect the interests of any
Certificateholder or any Companion Holder;
(iv) to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided
that (a) the P&I Advance Date shall in no event be later than the Business
Day prior to related Distribution Date, (b) such change shall not, as
evidenced by an Opinion of Counsel (at the expense of the party requesting
such amendment or at the expense of the Trust Fund if the requesting party
is the Trustee or the Paying Agent), adversely affect in any material
respect the interests of any Certificateholder or any Companion Holder and
(c) such change shall not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any Class of
Certificates as evidenced by a letter from each Rating Agency to such
effect;
(v) to modify, eliminate or add to the provisions of Section 5.02(c)
or any other provision hereof restricting transfer of the Residual
Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not, as evidenced by an Opinion of
Counsel, cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC
or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person;
(vi) to make any other provisions with respect to matters or
questions arising under this Agreement which shall not be materially
inconsistent with the provisions of this Agreement, provided that such
action shall not, (x) as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto (y) result in the downgrade,
withdrawal or qualification of the then-current rating assigned to any
Class of Certificates, as evidenced by a letter from each Rating Agency;
(vii) to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, provided that such change shall not
result in the downgrade, withdrawal or qualification of the then-current
rating assigned to any Class of Certificates, as evidenced by a letter
from each Rating Agency to such effect; and
(viii) to modify the provisions of Sections 3.05 and 3.19 (with
respect to reimbursement of Nonrecoverable Advances and Workout-Delayed
Reimbursement Amounts) if (a) the Depositor, the Master Servicer, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, (b) such
modification does not adversely affect the status of the Upper-Tier REMIC
or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion of Counsel
and (c) each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or
qualification of any of the then current ratings of any Class of
Certificates;
provided that no such amendment changes in any manner the obligations of any
Mortgage Loan Seller under a Mortgage Loan Purchase Agreement without the
consent of such Mortgage Loan Seller, or materially and adversely affects a
Companion Holder without such Companion Holder's consent.
(b) This Agreement may also be amended from time to time by the
parties hereto with the consent of the Holders of Certificates evidencing in the
aggregate not less than 66(2)/3% of the Percentage Interests of each Class of
Certificates affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Holders of Certificates of such
Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
(c) Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment hereto without having first received an
Opinion of Counsel (at the Trust Fund's expense) to the effect that such
amendment is permitted hereunder and that such amendment or the exercise of any
power granted to the Master Servicer, the Depositor, the Special Servicer, the
Trustee, the Paying Agent or any other specified person in accordance with such
amendment will not result in the imposition of a tax on any portion of the Trust
Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or the Grantor Trust, cause the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC or cause
the Grantor Trust to fail to qualify as a grantor trust.
(d) Promptly after the execution of any such amendment, the Paying
Agent shall furnish a statement describing the amendment to each
Certificateholder and the Trustee and shall furnish a copy of such amendment to
each Rating Agency.
(e) It shall not be necessary for the consent of Certificateholders
under this Section 11.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Paying Agent may prescribe.
(f) The Trustee shall not be obligated to enter into any amendment
pursuant to this Section that affects its rights, duties and immunities under
this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 11.01(a) or (c) shall be borne by the Person seeking the related
amendment, except that if the Master Servicer or the Trustee requests any
amendment of this Agreement in furtherance of the rights and interests of
Certificateholders, the cost of any Opinion of Counsel required in connection
therewith pursuant to Section 11.01(a) or (c) shall be payable out of the
Certificate Account.
(h) The Servicing Standards shall not be amended unless each Rating
Agency provides a written confirmation that such amendment would not cause a
downgrading, qualification or withdrawal of the then current ratings assigned to
any of the Certificates.
Section 11.02 Recordation of Agreement; Counterparts. (a) To the
extent permitted by applicable law, this Agreement is subject to recordation in
all appropriate public offices for real property records in all the counties or
other comparable jurisdictions in which any or all of the properties subject to
the Mortgages are situated, and in any other appropriate public recording office
or elsewhere, such recordation to be effected by the Trustee at the expense of
the Depositor on direction by the Special Servicer and with the consent of the
Depositor (which may not be unreasonably withheld), but only upon direction
accompanied by an Opinion of Counsel (the cost of which shall be paid by the
Depositor) to the effect that such recordation materially and beneficially
affects the interests of the Certificateholders.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
(c) The Trustee shall make any filings required under the laws of
the state of its place of business required solely by virtue of the fact of the
location of the Trustee's place of business, the costs of which, if any, to be
at the Trustee's expense.
Section 11.03 Limitation on Rights of Certificateholders. (a) The
death or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust Fund, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust Fund, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
(b) No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder previously shall have given to the
Trustee and the Paying Agent a written notice of default hereunder, and of the
continuance thereof, as herein before provided, and unless also (except in the
case of a default by the Trustee) the Holders of Certificates of any Class
evidencing not less than 25% of the related Percentage Interests in such Class
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. The
Trustee shall be under no obligation to exercise any of the trusts or powers
vested in it hereunder or to institute, conduct or defend any litigation
hereunder or in relation hereto at the request, order or direction of any of the
Holders of Certificates unless such Holders have offered to the Trustee
reasonable security against the costs, expenses and liabilities which may be
incurred therein or hereby. It is understood and intended, and expressly
covenanted by each Certificateholder with every other Certificateholder and the
Trustee, that no one or more Holders of Certificates shall have any right in any
manner whatsoever by virtue of any provision of this Agreement to affect,
disturb or prejudice the rights of the Holders of any other of such
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder, which priority or preference is not otherwise provided for
herein, or to enforce any right under this Agreement, except in the manner
herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
Section 11.03(c), each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Section 11.04 Governing Law. This Agreement and the Certificates
shall be construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed in said State, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
Section 11.05 Notices. Any communications provided for or permitted
hereunder shall be in writing and, unless otherwise expressly provided herein,
shall be deemed to have been duly given if personally delivered at or couriered,
sent by facsimile transmission or mailed by registered mail, postage prepaid
(except for notices to the Paying Agent and the Trustee which shall be deemed to
have been duly given only when received), to: (i) in the case of the Depositor,
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., 000 Xxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxx, Vice President, telecopy number:
(000) 000-0000 with a copy to it at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx 00000,
Attention: Xxxxxx X. Xxxxx, fax number (000) 000-0000; (ii) in the case of the
Master Servicer, GMAC Commercial Mortgage Corporation, 000 Xxxxxx Xxxx, Xxxxxxx,
Xxxxxxxxxxxx 00000, Attention: Managing Director, Commercial Servicing
Operations, Re: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2005-LDP3, telecopy
number: (000) 000-0000, with a copy to GMAC General Counsel, telecopy number
(000) 000-0000; (iii) in the case of the Special Servicer, CWCapital Asset
Management LLC, 0000 Xxxxxxxxxxxx Xxxxxx X.X., Xxxxxxxxxx, X.X. 00000-0000,
Attention: Xxxxx Xxxxxxxxx (JPM 2005-LDP3), facsimile number: (000) 000-0000
with a copy to CWCapital Asset Management LLC, One Xxxxxxx River Place, 00
Xxxxxxxx Xxxxxx, Xxxxxxx, XX 00000, Attention: Xxxx Xxxx (JPM 0000-XXX0),
xxxxxxxxx number: (000) 000-0000; (iv) in the case of the Trustee, Xxxxx Fargo
Bank, N.A., 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, Attention:
Corporate Trust Services (CMBS), X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., Series 2005-LDP3, fax number (000) 000-0000; (v) in the case
of the Rating Agencies, (a) S&P Ratings Services, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000-0000, Attention: CMBS Surveillance Group, fax number: (000) 000-0000;
and (b) Xxxxx'x Investors Services, Inc., 00 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Commercial Mortgage Surveillance Group, fax number:
(000) 000-0000; (vi) in the case of the initial Paying Agent, the initial
Certificate Registrar and the initial Authenticating Agent, LaSalle Bank
National Association, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx
00000, Attention: Global Securities and Trust Services Group, X.X. Xxxxxx
2005-LDP3, fax number: (000) 000-0000; (vii) in the case of the Mortgage Loan
Sellers, (a) JPMorgan Chase Bank, N.A., 270 Park Avenue, 10th Floor, Attention:
Xxxxx Xxx, fax number (000) 000-0000, with a copy to Xxxxxx Xxxxx, fax number
(000) 000-0000; (b) Nomura Credit & Capital, Inc., 2 World Xxxxxxxxx Xxxxxx,
Xxxxxxxx X, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: N. Xxxxx XxXxxxx, fax
number: (000) 000-0000; and (c) LaSalle Bank National Association, 000 Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Managing
Director RECM, fax number: (000) 000-0000; (viii) in the case of the Initial
Directing Certificateholder, Cadim TACH inc. c/o CDP Capital Real Estate
Advisors, CDP Capital Center, 0000 Xxxx-Xxxx-Xxxxxxxx Xxxxx, Xxxxx X-000,
Xxxxxxxx, Xxxxxx X0X 0X0, Xxxxxx, Attention: Corporate Secretary, with a copy to
CWCapital Investments, LLC, 0000 Xxxxx Xxxxxx, Xxxx Xxxx, Xxxxx 000, Xxxxxxx
Xxxxx, Xxxxxxxxxx 00000, Attention: Xxx Xxxxx (JPM 2005-LDP3) and a copy to
CWCapital Investments, LLC, 0000 Xxxxxxxxxxxx Xxxxxx X.X., Xxxxxxxxxx, X.X.
00000-0000, Attention Xxxxxxxx Xxxxxxxxx (JPM 2005-LDP3), facsimile number:
(000) 000-0000; and (ix) in the case of a Companion Holder, the address set
forth in the related Intercreditor Agreement; or as to each such Person such
other address as may hereafter be furnished by such Person to the parties hereto
in writing. Any communication required or permitted to be delivered to a
Certificateholder shall be deemed to have been duly given when mailed first
class, postage prepaid, to the address of such Holder as shown in the
Certificate Register. Any notice so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have been duly given, whether or not
the Certificateholder receives such notice.
Section 11.06 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 11.07 Grant of a Security Interest. The Depositor intends
that the conveyance of the Depositor's right, title and interest in and to the
Mortgage Loans pursuant to this Agreement shall constitute a sale and not a
pledge of security for a loan. If such conveyance is deemed to be a pledge of
security for a loan, however, the Depositor intends that the rights and
obligations of the parties to such loan shall be established pursuant to the
terms of this Agreement. The Depositor also intends and agrees that, in such
event, (i) the Depositor shall be deemed to have granted to the Trustee (in such
capacity) a first priority security interest in the Depositor's entire right,
title and interest in and to the assets comprising the Trust Fund, including
without limitation, the Mortgage Loans, all principal and interest received or
receivable with respect to the Mortgage Loans (other than principal and interest
payments due and payable prior to the Cut-off Date and Principal Prepayments
received prior to the Cut-off Date), all amounts held from time to time in the
Certificate Account, the Distribution Accounts, the Excess Interest Distribution
Account, the Gain-on-Sale Reserve Account, the Interest Reserve Account and, if
established, the REO Account, and all reinvestment earnings on such amounts, and
all of the Depositor's right, title and interest in and to the proceeds of any
title, hazard or other Insurance Policies related to such Mortgage Loans and
(ii) this Agreement shall constitute a security agreement under applicable law.
This Section 11.07 shall constitute notice to the Trustee pursuant to any of the
requirements of the applicable UCC.
Section 11.08 Successors and Assigns; Third Party Beneficiaries. The
provisions of this Agreement shall be binding upon and inure to the benefit of
the respective successors and assigns of the parties hereto, and all such
provisions shall inure to the benefit of the Certificateholders. Each Mortgage
Loan Seller and the Companion Holders (and their agents) is an intended
third-party beneficiary in respect of the respective rights afforded it
hereunder. No other person, including, without limitation, any Mortgagor, shall
be entitled to any benefit or equitable right, remedy or claim under this
Agreement.
Section 11.09 Article and Section Headings. The article and section
headings herein are for convenience of reference only, and shall not limit or
otherwise affect the meaning hereof.
Section 11.10 Notices to the Rating Agencies. (a) The Trustee shall
use reasonable efforts promptly to provide notice to each Rating Agency with
respect to each of the following of which it has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been cured;
(iii) the resignation or termination of the Paying Agent, the Master
Servicer or the Special Servicer; and
(iv) the repurchase or substitution of Mortgage Loans by a Mortgage
Loan Seller pursuant to Section 6 of the related Mortgage Loan Purchase
Agreement.
(b) The Master Servicer shall use reasonable efforts promptly to
provide notice to each Rating Agency with respect to each of the following of
which it has actual knowledge:
(i) the resignation or removal of the Trustee;
(ii) any change in the location of the Certificate Account;
(iii) any event that would result in the voluntary or involuntary
termination of any insurance of the accounts of the Trustee;
(iv) any change in the lien priority of any Mortgage Loan with
respect to an assumption of the Mortgage Loan or additional encumbrance
described in Section 3.08;
(v) any additional lease to an anchor tenant or termination of any
existing lease to an anchor tenant at retail properties for any Mortgage
Loan with a Stated Principal Balance that is equal to or greater than the
lesser of (1) an amount greater than 5% of the then aggregate outstanding
principal balances of the Mortgage Loans or (2) $35,000,000;
(vi) any material damage to any Mortgaged Property;
(vii) any assumption with respect to a Mortgage Loan; and
(viii) any release or substitution of any Mortgaged Property.
(c) Upon written request, each of the Master Servicer and the
Special Servicer shall promptly furnish to each Rating Agency copies of
inspection reports and other items delivered to each of the Master Servicer and
Special Servicer pursuant to Sections 3.12(a) and 3.12(b).
(d) The Paying Agent shall promptly furnish notice to the Rating
Agencies of (i) any change in the location of the Distribution Accounts and (ii)
the final payment to any Class of Certificateholders.
(e) The Trustee, the Paying Agent, the Master Servicer and the
Special Servicer, as applicable, shall furnish to each Rating Agency with
respect to each Mortgage Loan such information as the Rating Agency shall
reasonably request and which the Trustee, the Paying Agent, the Master Servicer
or Special Servicer, can reasonably provide in accordance with applicable law
and without waiving any attorney-client privilege relating to such information
or violating the terms of this Agreement or any Mortgage Loan documents. The
Trustee, the Master Servicer and Special Servicer, as applicable, may include
any reasonable disclaimer it deems appropriate with respect to such information.
Notwithstanding anything to the contrary herein, nothing in this Section 11.10
shall require a party to provide duplicative notices or copies to the Rating
Agencies with respect to any of the above listed items.
[End of Article XI]
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP., Depositor
By:/s/ Xxxxxxx X. Xxx
------------------------------------
Name: Xxxxxxx X. Xxx
Title: Vice President
GMAC COMMERCIAL MORTGAGE CORPORATION,
Master Servicer
By:/s/ Xxxxxx Xxxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
CWCAPITAL ASSET MANAGEMENT LLC,
Special Servicer
By:/s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Director
XXXXX FARGO BANK, N.A.,
Trustee
By:/s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION,
Paying Agent
By:/s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
Title: First Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 22nd day of August 2005, before me, a notary public in and
for said State, personally appeared Xxxxxxx X. Xxx known to me to be a Vice
President of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., one of the
corporations that executed the within instrument, and also known to me to be the
person who executed it on behalf of such corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxx X. Xxxxxxx
--------------------------------------
Notary Public
[SEAL]
My commission expires:
May 20, 0000
XXXXX XX XXXXXXXXXXXX )
) ss.:
COUNTY OF XXXXXXXXXX )
On the 24th day of August 2005, before me, a notary public in and
for said State, personally appeared Xxxxxx Xxxxxxxxxx known to me to be a Vice
President of GMAC Commercial Mortgage Corporation, that executed the within
instrument, and also known to me to be the person who executed it on behalf of
such corporation, and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx Xxxxx
--------------------------------------
Notary Public
[SEAL]
My commission expires:
April 25, 0000
XXXXXXXX XX XXXXXXXX ) ss.:
On the 18th day of August 2005 before me, a notary public in and
for said State, personally appeared Xxxxx X. Xxxxxxxxx known to me to be a
Director of CWCapital Asset Management LLC, that executed the within instrument,
and also known to me to be the person who executed it on behalf of such
corporation, and acknowledged to me that such corporation executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx X. Xxxxxx
--------------------------------------
Notary Public
[SEAL]
My commission expires:
November 30, 0000
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF KINGS )
On the 24th day of August 2005 before me, a notary public in and
for said State, personally appeared Xxxxxxx Xxxxxxx known to me to be a Vice
President of Xxxxx Fargo Bank, N.A., that executed the within instrument, and
also known to me to be the person who executed it on behalf of such national
banking association, and acknowledged to me that such national banking
association executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx X. Xxxxxx
--------------------------------------
Notary Public
[SEAL]
My commission expires:
January 3, 0000
XXXXX XX XXXXXXXX )
) ss.:
COUNTY OF XXXX )
On the 24th day of August 2005, before me, a notary public in and
for said State, personally appeared Xxxxx X. Xxxx known to me to be a First Vice
President of LaSalle Bank National Association, that executed the within
instrument, and also known to me to be the person who executed it on behalf of
such national banking association, and acknowledged to me that such national
banking association executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx X. Xxxxx
--------------------------------------
Notary Public
[SEAL]
My commission expires:
November 20, 2005
EXHIBIT A-1
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP3, CLASS A-1
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: FIXED MASTER SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
DENOMINATION: $62,934,000
SPECIAL SERVICER: CWCAPITAL ASSET
MANAGEMENT LLC
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF AUGUST 1, 2005
TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS PAYING AGENT: LASALLE BANK NATIONAL
DEFINED HEREIN) ASSOCIATION
CLOSING DATE: AUGUST 24, 2005 CUSIP NO.: 46625Y SD 6
FIRST DISTRIBUTION DATE: ISIN NO.: US46625YSD66
SEPTEMBER 15, 2005
COMMON CODE NO.: 022839900
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-1 CERTIFICATES CERTIFICATE NO.: A-1-[--]
AS OF THE CLOSING DATE: $62,934,000
CLASS A-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-1 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of August 1, 2005 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-1 Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-1 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-1 Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: August 24, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-2
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP3, CLASS A-2
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: FIXED MASTER SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
DENOMINATION: $238,973,000
SPECIAL SERVICER: CWCAPITAL ASSET
MANAGEMENT LLC
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF AUGUST 1, 2005
TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS PAYING AGENT: LASALLE BANK NATIONAL
DEFINED HEREIN) ASSOCIATION
CLOSING DATE: AUGUST 24, 2005 CUSIP NO.: 46625Y SE 4
FIRST DISTRIBUTION DATE: ISIN NO.: US46625YSE40
SEPTEMBER 15, 2005
COMMON CODE NO.: 022839918
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: A-2-[--]
OF THE CLASS A-2 CERTIFICATES
AS OF THE CLOSING DATE: $238,973,000
CLASS A-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-2 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of August 1, 2005 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-2 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-2 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-2 Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: August 24, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-3
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP3, CLASS A-3
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: FIXED MASTER SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
DENOMINATION: $269,596,000
SPECIAL SERVICER: CWCAPITAL ASSET
MANAGEMENT LLC
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF AUGUST 1, 2005
TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS PAYING AGENT: LASALLE BANK NATIONAL
DEFINED HEREIN) ASSOCIATION
CLOSING DATE: AUGUST 24, 2005 CUSIP NO.: 46625Y SF 1
FIRST DISTRIBUTION DATE: ISIN NO.: US46625YSF15
SEPTEMBER 15, 2005
COMMON CODE NO.: 022839942
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: A-3-[--]
OF THE CLASS A-3 CERTIFICATES
AS OF THE CLOSING DATE: $269,596,000
CLASS A-3 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-3 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of August 1, 2005 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-3 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-3 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-3 Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: August 24, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-3 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-4
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP3, CLASS A-4A
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: FIXED IN ACCORDANCE MASTER SERVICER: GMAC COMMERCIAL
WITH POOLING AND SERVICE AGREEMENT MORTGAGE CORPORATION
DENOMINATION: $500,000,000, $46,251,000 SPECIAL SERVICER: CWCAPITAL ASSET
MANAGEMENT LLC
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF AUGUST 1, 2005 TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE PAYING AGENT: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CUSIP NO.: 00000X XX 9
CLOSING DATE: AUGUST 24, 2005
ISIN NO.: US46625YSG97
FIRST DISTRIBUTION DATE:
SEPTEMBER 15, 2005
COMMON CODE NO.: 022839845
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: A-4A-[--]
OF THE CLASS A-4A CERTIFICATES
AS OF THE CLOSING DATE: $546,251,000
CLASS A-4A CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-4A Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of August 1, 2005 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-3A Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-3A Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-4A Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: August 24, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-4A CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-5
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP3, CLASS A-4B
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: FIXED IN ACCORDANCE MASTER SERVICER: GMAC COMMERCIAL
WITH POOLING AND SERVICING AGREEMENT MORTGAGE CORPORATION
DENOMINATION: $78,036,000 SPECIAL SERVICER: CWCAPITAL ASSET
MANAGEMENT LLC
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF AUGUST 1, 2005 TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE PAYING AGENT: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CUSIP NO.: 46625Y SH 7
CLOSING DATE: AUGUST 24, 2005
ISIN NO.: US46625YSH70
FIRST DISTRIBUTION DATE:
SEPTEMBER 15, 2005
COMMON CODE NO.: 022839993
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: A-4B[--]
OF THE CLASS A-4 CERTIFICATES
AS OF THE CLOSING DATE: $78,036,000
CLASS A-4B CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-4B Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of August 1, 2005 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-4 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-4 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-4B Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: August 24, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-4 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-6
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP3, CLASS A-SB
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: FIXED IN MASTER SERVICER: GMAC COMMERCIAL
ACCORDANCE WITH POOLING AND SERVICING MORTGAGE CORPORATION
AGREEMENT
SPECIAL SERVICER: CWCAPITAL ASSET
DENOMINATION: $104,651,000 MANAGEMENT LLC
DATE OF POOLING AND SERVICING TRUSTEE: XXXXX FARGO BANK, N.A.
AGREEMENT: AS OF AUGUST 1, 2005
PAYING AGENT: LASALLE BANK NATIONAL
CUT-OFF DATE: AS SET FORTH IN THE ASSOCIATION
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN)
CUSIP NO.: 46625Y SK 0
CLOSING DATE: AUGUST 24, 2005
ISIN NO.: US46625YSK00
FIRST DISTRIBUTION DATE:
SEPTEMBER 15, 2005 COMMON CODE NO.: 022840045
APPROXIMATE AGGREGATE CERTIFICATE NO.: A-SB-[--]
CERTIFICATE BALANCE
OF THE CLASS A-SB CERTIFICATES
AS OF THE CLOSING DATE: $104,651,000
CLASS A-SB CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-SB Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of August 1, 2005 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-SB Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-SB Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-SB Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: August 24, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-SB CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-7
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP3, CLASS A-1A
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: FIXED IN MASTER SERVICER: GMAC COMMERCIAL
ACCORDANCE WITH POOLING AND SERVICING MORTGAGE CORPORATION
AGREEMENT
DENOMINATION: $317,725,000 SPECIAL SERVICER: CWCAPITAL ASSET
MANAGEMENT LLC
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF AUGUST 1, 2005 TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE PAYING AGENT: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CUSIP NO.: [US48138 YK 8](1), [46625Y SS
CLOSING DATE: AUGUST 24, 2005 3](2), [46625Y SZ 7 ](3)
FIRST DISTRIBUTION DATE: ISIN NO.: [USU48138YK88](1),
SEPTEMBER 15, 2005 [US46625YSS36](2), [US46625YSZ78](3)
APPROXIMATE AGGREGATE COMMON CODE NO.: [022840258](1)
CERTIFICATE BALANCE [022840711](2)
OF THE CLASS A-1A CERTIFICATES
AS OF THE CLOSING DATE: CERTIFICATE NO.: A-1A-[--]
$317,725,000
------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS A-1A CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-1A Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of August 1, 2005 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-1A Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-1A Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-1A Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: August 24, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1A CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon Remaining Certificate
transfer of, an interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-8
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP3, CLASS X-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS X-1 CERTIFICATE HAS NO PRINCIPAL BALANCE AND WILL NOT RECEIVE ANY
DISTRIBUTION OF PRINCIPAL.
THE NOTIONAL AMOUNT ON WHICH THE INTEREST PAYABLE TO THE HOLDERS OF THE CLASS
X-1 CERTIFICATES IS BASED WILL BE REDUCED AS A RESULT OF PRINCIPAL PAYMENTS AND
LOSSES ON THE MORTGAGE LOANS. ACCORDINGLY, THE INTEREST PAYABLE PURSUANT TO THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. THIS CERTIFICATE CONSTITUTES
A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: GMAC COMMERCIAL
ACCORDANCE WITH POOLING AND SERVICING MORTGAGE CORPORATION
AGREEMENT
SPECIAL SERVICER: CWCAPITAL ASSET
DENOMINATION: [$500,000,000], MANAGEMENT LLC
[$500,000,000], [$500,000,000],
[$500,000,000], [$22,707,616]
TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF AUGUST 1, 2005 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS DEFINED IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.:[U48138 YJ 1](1), [46625Y SR
DEFINED HEREIN) 5](2), [46625Y SZ 7](3)
CLOSING DATE: AUGUST 24, 2005 ISIN NO.: [USU48138YJ16](1),
[US46625YSR52](2), [US46625YSY04](3)
FIRST DISTRIBUTION DATE:
SEPTEMBER 15, 2005 COMMON CODE: [022840665](1)
[022840738](2)
APPROXIMATE AGGREGATE NOTIONAL AMOUNT CERTIFICATE NO.: X-1-[--]
OF THE CLASS X-1 CERTIFICATES AS OF THE
CLOSING DATE: $2,022,707,616
-------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS X-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class X-1 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of August 1, 2005 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Special Servicer
and the Master Servicer. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2005-LDP3 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of interest then distributable, if any,
allocable to the Class of Certificates of the same Class as this Certificate for
such Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate will not be entitled to distributions in
respect of principal. Holders of this Certificate may be entitled to Yield
Maintenance Charges as provided in the Pooling and Servicing Agreement. All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
This Class X-1 Certificate has no principal balance and will not
receive any distribution of principal.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date Class X-1 Pass-Through Rate
specified above on the Notional Amount of this Certificate immediately prior to
such Distribution Date, as specified above. Interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X-1 Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of not less than $1,000,000 initial Notional Amount, and
in integral multiples of $1 in excess thereof, with one Certificate of such
Class evidencing an additional amount equal to the remainder of the initial
Notional Amount of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: August 24, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Notional Amount of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon
transfer of, an interest in this Remaining Notional Amount Notation
Date Book-Entry Certificate of Book-Entry Certificate Made By
----------------- ----------------------------------------- ----------------------------- ------------------
----------------- ----------------------------------------- ----------------------------- ------------------
----------------- ----------------------------------------- ----------------------------- ------------------
----------------- ----------------------------------------- ----------------------------- ------------------
----------------- ----------------------------------------- ----------------------------- ------------------
----------------- ----------------------------------------- ----------------------------- ------------------
----------------- ----------------------------------------- ----------------------------- ------------------
----------------- ----------------------------------------- ----------------------------- ------------------
----------------- ----------------------------------------- ----------------------------- ------------------
----------------- ----------------------------------------- ----------------------------- ------------------
----------------- ----------------------------------------- ----------------------------- ------------------
----------------- ----------------------------------------- ----------------------------- ------------------
----------------- ----------------------------------------- ----------------------------- ------------------
----------------- ----------------------------------------- ----------------------------- ------------------
----------------- ----------------------------------------- ----------------------------- ------------------
----------------- ----------------------------------------- ----------------------------- ------------------
----------------- ----------------------------------------- ----------------------------- ------------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-9
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP3, CLASS X-2
THIS CLASS X-2 CERTIFICATE HAS NO PRINCIPAL BALANCE AND WILL NOT RECEIVE ANY
DISTRIBUTION OF PRINCIPAL.
THE NOTIONAL AMOUNT ON WHICH THE INTEREST PAYABLE TO THE HOLDERS OF THE CLASS
X-2 CERTIFICATES IS BASED WILL BE REDUCED AS A RESULT OF PRINCIPAL PAYMENTS AND
LOSSES ON THE MORTGAGE LOANS. ACCORDINGLY, THE INTEREST PAYABLE PURSUANT TO THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. THIS CERTIFICATE CONSTITUTES
A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: GMAC COMMERCIAL
ACCORDANCE WITH THE POOLING AND MORTGAGE CORPORATION
SERVICING AGREEMENT
SPECIAL SERVICER: CWCAPITAL ASSET
DENOMINATION: [$500,000,000], MANAGEMENT LLC
[$500,000,000], [$500,000,000],
[$480,228,000]
TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF AUGUST 1, 2005 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS DEFINED IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: 46625Y SL 8
DEFINED HEREIN)
ISIN NO.: US46625YSL82
CLOSING DATE: AUGUST 24, 2005
COMMON CODE: 022840070
FIRST DISTRIBUTION DATE:
SEPTEMBER 15, 2005 CERTIFICATE NO.: X-2-[--]
APPROXIMATE AGGREGATE NOTIONAL
AMOUNT OF THE CLASS X-2 CERTIFICATES AS
OF THE CLOSING DATE: $1,980,228,000
CLASS X-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class X-2 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of August 1, 2005 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Special Servicer
and the Master Servicer. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2005-LDP3 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of interest then distributable, if any,
allocable to the Class of Certificates of the same Class as this Certificate for
such Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate will not be entitled to distributions in
respect of principal. Holders of this Certificate may be entitled to Yield
Maintenance Charges as provided in the Pooling and Servicing Agreement. All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
This Class X-2 Certificate has no principal balance and will not
receive any distribution of principal.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date Class X-2 Pass-Through Rate
specified above on the Notional Amount of this Certificate immediately prior to
such Distribution Date, as specified above. Interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X-2 Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of not less than $1,000,000 initial Notional Amount, and
in integral multiples of $1 in excess thereof, with one Certificate of such
Class evidencing an additional amount equal to the remainder of the initial
Notional Amount of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: August 24, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-10
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP3, CLASS A-J
THIS CLASS A-J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: GMAC COMMERCIAL
ACCORDANCE WITH THE POOLING AND MORTGAGE CORPORATION
SERVICING AGREEMENT
SPECIAL SERVICER: CWCAPITAL ASSET
DENOMINATION: $151,703,000 MANAGEMENT LLC
DATE OF POOLING AND SERVICING TRUSTEE: XXXXX FARGO BANK, N.A.
AGREEMENT: AS OF AUGUST 1, 2005
PAYING AGENT: LASALLE BANK NATIONAL
CUT-OFF DATE: AS SET FORTH IN THE ASSOCIATION
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN)
CUSIP NO.: 46625Y SM 6
CLOSING DATE: AUGUST 24, 2005
ISIN NO.: US46625YSM65
FIRST DISTRIBUTION DATE:
SEPTEMBER 15, 2005 COMMON CODE NO.: 022840088
CERTIFICATE NO.: A-J-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-J CERTIFICATES
AS OF THE CLOSING DATE: $151,703,000
CLASS A-J CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-J Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of August 1, 2005 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-J Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-J Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-J Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: August 24, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-11
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP3, CLASS B
THIS CLASS B CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: GMAC COMMERCIAL
ACCORDANCE WITH THE POOLING AND MORTGAGE CORPORATION
SERVICING AGREEMENT
SPECIAL SERVICER: CWCAPITAL ASSET
DENOMINATION: $37,925,000 MANAGEMENT LLC
DATE OF POOLING AND SERVICING TRUSTEE: XXXXX FARGO BANK, N.A.
AGREEMENT: AS OF AUGUST 1, 2005
PAYING AGENT: LASALLE BANK NATIONAL
CUT-OFF DATE: AS DEFINED IN THE ASSOCIATION
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN)
CUSIP NO.: 46625Y SN 4
CLOSING DATE: AUGUST 24, 2005
ISIN NO.: US46625YSN49
FIRST DISTRIBUTION DATE:
SEPTEMBER 15, 2005 COMMON CODE NO.: 022840100
CERTIFICATE NO.: B-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS B CERTIFICATES
AS OF THE CLOSING DATE: $37,925,000
CLASS B CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class B Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of August 1, 2005 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class B
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class B Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class B Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: August 24, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-12
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP3, CLASS C
THIS CLASS C CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: GMAC COMMERCIAL
ACCORDANCE WITH THE POOLING AND MORTGAGE CORPORATION
SERVICING AGREEMENT
SPECIAL SERVICER: CWCAPITAL ASSET
DENOMINATION: $17,699,000 MANAGEMENT LLC
DATE OF POOLING AND SERVICING TRUSTEE: XXXXX FARGO BANK, N.A.
AGREEMENT: AS OF AUGUST 1, 2005
PAYING AGENT: LASALLE BANK NATIONAL
CUT-OFF DATE: AS DEFINED IN THE ASSOCIATION
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) CUSIP NO.: 46625Y SP 9
CLOSING DATE: AUGUST 24, 2005 ISIN NO.: US46625YSP96
FIRST DISTRIBUTION DATE: COMMON CODE NO.: 022840126
SEPTEMBER 15, 2005
CERTIFICATE NO.: C-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS C CERTIFICATES
AS OF THE CLOSING DATE: $17,699,000
CLASS C CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class C Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of August 1, 2005 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class C
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class C Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class C Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: August 24, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-13
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP3, CLASS D
THIS CLASS D CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: GMAC COMMERCIAL
ACCORDANCE WITH THE POOLING AND MORTGAGE CORPORATION
SERVICING AGREEMENT
SPECIAL SERVICER: CWCAPITAL ASSET
DENOMINATION: $37,926,000 MANAGEMENT LLC
DATE OF POOLING AND SERVICING TRUSTEE: XXXXX FARGO BANK, N.A.
AGREEMENT: AS OF AUGUST 1, 2005
PAYING AGENT: LASALLE BANK NATIONAL
CUT-OFF DATE: AS SET FORTH IN THE ASSOCIATION
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN)
CUSIP NO.: 46625Y SQ 7
CLOSING DATE: AUGUST 24, 2005
ISIN NO.: US46625YSQ79
FIRST DISTRIBUTION DATE:
SEPTEMBER 15, 2005 COMMON CODE NO.: 022840223
CERTIFICATE NO.: D-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS D CERTIFICATES
AS OF THE CLOSING DATE: $37,926,000
CLASS D CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class D Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of August 1, 2005 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class D
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class D Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class D Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: August 24, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS D CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-14
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP3, CLASS E
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS E CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: GMAC COMMERCIAL
ACCORDANCE WITH THE POOLING AND MORTGAGE CORPORATION
SERVICING AGREEMENT
SPECIAL SERVICER: CWCAPITAL ASSET
DENOMINATION: $17,699,000 MANAGEMENT LLC
DATE OF POOLING AND SERVICING TRUSTEE: XXXXX FARGO BANK, N.A.
AGREEMENT: AS OF AUGUST 1, 2005
PAYING AGENT: LASALLE BANK NATIONAL
CUT-OFF DATE: AS SET FORTH IN THE ASSOCIATION
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN)
CUSIP NO.: [U48138 YL 6]1
[46625Y ST 1](2) [46625Y TA 1](3)
CLOSING DATE: AUGUST 24, 2005
ISIN NO.: [USU48138YL61](1)
FIRST DISTRIBUTION DATE: [US46625YST19](2) [US46625YTA19](3)
SEPTEMBER 15, 2005
COMMON CODE NO.: [022840339](1)
APPROXIMATE AGGREGATE [022840754](2)
CERTIFICATE BALANCE CERTIFICATE NO.: E-[--]
OF THE CLASS G CERTIFICATES
AS OF THE CLOSING DATE: $17,699,000
-------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS E CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class E Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of August 1, 2005 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class E
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class G Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class E Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: August 24, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon Remaining Certificate
transfer of, an interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-15
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP3, CLASS-F
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS F CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: GMAC COMMERCIAL
ACCORDANCE WITH THE POOLING AND MORTGAGE CORPORATION
SERVICING AGREEMENT
SPECIAL SERVICER: CWCAPITAL ASSET
DENOMINATION: $27,812,000 MANAGEMENT LLC
DATE OF POOLING AND SERVICING TRUSTEE: XXXXX FARGO BANK, N.A.
AGREEMENT: AS OF AUGUST 1, 2005
PAYING AGENT: LASALLE BANK NATIONAL
CUT-OFF DATE: AS SET FORTH IN THE ASSOCIATION
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN)
CUSIP NO.: [U4813 YM 4]1 [46625Y SU 8](2)
[46625Y TB 9](3)
CLOSING DATE: AUGUST 24, 2005
ISIN NO.: [USU48138YM45](1)
FIRST DISTRIBUTION DATE: [US46625YSU81](2) [US46625YTB91](3)
SEPTEMBER 15, 2005
COMMON CODE NO.: [022840371](1)
APPROXIMATE AGGREGATE [022840797](2)
CERTIFICATE BALANCE CERTIFICATE NO.: F-[--]
OF THE CLASS G CERTIFICATES
AS OF THE CLOSING DATE: $27,812,000
-------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS F CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class F Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of August 1, 2005 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class F
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class G Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class F Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: August 24, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon Remaining Certificate
transfer of, an interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-16
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP3, CLASS G
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS G CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: GMAC COMMERCIAL
ACCORDANCE WITH THE POOLING AND MORTGAGE CORPORATION
SERVICING AGREEMENT
SPECIAL SERVICER: CWCAPITAL ASSET
DENOMINATION: $20,227,000 MANAGEMENT LLC
DATE OF POOLING AND SERVICING TRUSTEE: XXXXX FARGO BANK, N.A.
AGREEMENT: AS OF AUGUST 1, 2005
PAYING AGENT: LASALLE BANK NATIONAL
CUT-OFF DATE: AS SET FORTH IN THE ASSOCIATION
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN)
CUSIP NO.: [U48138 YN 2](1) [46625Y SV
6](2) [46625Y TC 7](3)
CLOSING DATE: AUGUST 24, 2005
ISIN NO.: [USU48138YN28](1)
FIRST DISTRIBUTION DATE: [USU46625YSV64](2) [USU46625YTC74](3)
SEPTEMBER 15, 2005
COMMON CODE NO.: [022840410](1)
APPROXIMATE AGGREGATE [022840819](2)
CERTIFICATE BALANCE CERTIFICATE NO.: G-[--]
OF THE CLASS G CERTIFICATES
AS OF THE CLOSING DATE: $20,227,000
-------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS G CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class G Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of August 1, 2005 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class G
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class G Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class G Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: August 24, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon Remaining Certificate
transfer of, an interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-17
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP3, CLASS H
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS H CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: GMAC COMMERCIAL
ACCORDANCE WITH THE POOLING AND MORTGAGE CORPORATION
SERVICING AGREEMENT
SPECIAL SERVICER: CWCAPITAL ASSET
DENOMINATION: $25,284,000 MANAGEMENT LLC
DATE OF POOLING AND SERVICING TRUSTEE: XXXXX FARGO BANK, N.A.
AGREEMENT: AS OF AUGUST 1, 2005
PAYING AGENT: LASALLE BANK NATIONAL
CUT-OFF DATE: AS SET FORTH IN THE ASSOCIATION
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN)
CUSIP NO.: [U48138 YP 7](1) [46625Y SW
4](2) [46625Y TD 5](3)
CLOSING DATE: AUGUST 24, 2005
ISIN NO.: [USU48138YP75](1)
FIRST DISTRIBUTION DATE: [US46625YSW48](2) [US46625YTD57](3)
SEPTEMBER 15, 2005
COMMON CODE NO.: [022840428](1)
APPROXIMATE AGGREGATE [022840827](2)
CERTIFICATE BALANCE CERTIFICATE NO.: H-[--]
OF THE CLASS H CERTIFICATES
AS OF THE CLOSING DATE: $25,284,000
-------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS H CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class H Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of August 1, 2005 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class H
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class H Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class H Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: August 24, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon Remaining Certificate
transfer of, an interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-18
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP3, CLASS J
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN, EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF
SUCH CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE INITIAL PURCHASERS OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
-------------
(1) For Book-Entry Regulation S Investors Only.
PASS-THROUGH RATE: FIXED IN ACCORDANCE MASTER SERVICER: GMAC COMMERCIAL
WITH THE POOLING AND SERVICING MORTGAGE CORPORATION
AGREEMENT
DENOMINATION: $10,113,000 SPECIAL SERVICER: CWCAPITAL ASSET
MANAGEMENT LLC
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF AUGUST 1, 2005 TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE PAYING AGENT: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CUSIP NO.: [U48138 YQ 5](1) [46625Y SX
CLOSING DATE: AUGUST 24, 2005 2](1) [46625Y TE 3](2)
FIRST DISTRIBUTION DATE: ISIN NO.: [USU48138YQ58](1)
SEPTEMBER 15, 2005 [US46625YSX21](2) [US46625YTE31](3)
COMMON CODE NO.: [022840479](1)
APPROXIMATE AGGREGATE [022840843](2)
CERTIFICATE BALANCE CERTIFICATE NO.: J-[--]
OF THE CLASS J CERTIFICATES
AS OF THE CLOSING DATE: $10,113,000
-------------
(1) For Book-Entry Rule 144A Only.
(2) For Institutional Accredited Investors Only.
CLASS J CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class J Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of August 1, 2005 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class J
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class J Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class J Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: August 24, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon Remaining Certificate
transfer of, an interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-19
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP3, CLASS K
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS K CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN, EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF
SUCH CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE INITIAL PURCHASERS OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
-------------
(1) For Book-Entry Regulation S Investors Only.
PASS-THROUGH RATE: FIXED IN ACCORDANCE MASTER SERVICER: GMAC COMMERCIAL
WITH THE POOLING AND SERVICING AGREEMENT MORTGAGE CORPORATION
DENOMINATION: $10,114,000 SPECIAL SERVICER: CWCAPITAL ASSET
MANAGEMENT LLC
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF AUGUST 1, 2005 TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE PAYING AGENT: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CUSIP NO.: [U48138 YT 9](1)
[46625Y TK 9](1) [46625Y TR 4](2)
CLOSING DATE: AUGUST 24, 2005
ISIN NO.: [USU48138YT97](1)
FIRST DISTRIBUTION DATE: [US46625YTK90](2) [US46625YTR44](3)
SEPTEMBER 15, 2005
COMMON CODE NO.: [022840495](1)
APPROXIMATE AGGREGATE [022841025](2)
CERTIFICATE BALANCE CERTIFICATE NO.: K-[--]
OF THE CLASS K CERTIFICATES
AS OF THE CLOSING DATE: $10,114,000
-------------
(1) For Institutional Accredited Investors Only.
(2) For Book-Entry Rule 144A Only.
CLASS K CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class K Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of August 1, 2005 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class K
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class K Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class K Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: August 24, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS K CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon Remaining Certificate
transfer of, an interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-20
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP3, CLASS L
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS L CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN, EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF
SUCH CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE INITIAL PURCHASERS OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
-------------
(1) For Book-Entry Regulation S Investors Only.
PASS-THROUGH RATE: FIXED IN ACCORDANCE MASTER SERVICER: GMAC COMMERCIAL
WITH THE POOLING AND SERVICING AGREEMENT MORTGAGE CORPORATION
SPECIAL SERVICER: CWCAPITAL ASSET
DENOMINATION: $7,585,000 MANAGEMENT LLC
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF AUGUST 1, 2005 TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE PAYING AGENT: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CUSIP NO.: [U48138 YU 6](1) [46625Y TL
CLOSING DATE: AUGUST 24, 2005 7](2) [46625Y TS 2](3)
ISIN NO.: [USU48138YU60](1)
FIRST DISTRIBUTION DATE: [US46625YTL73](2) [US46625YTS27](3)
SEPTEMBER 15, 2005
COMMON CODE NO.: [022840517](1)
APPROXIMATE AGGREGATE [022841041](2)
CERTIFICATE BALANCE CERTIFICATE NO.: L-[--]
OF THE CLASS L CERTIFICATES
AS OF THE CLOSING DATE: $7,585,000
-------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS L CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class L Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of August 1, 2005 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class L
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class L Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class L Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: August 24, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS L CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon Remaining Certificate
transfer of, an interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-21
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP3, CLASS M
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS M CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN, EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF
SUCH CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE INITIAL PURCHASERS OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
-------------
(1) For Book-Entry Regulation S Investors Only.
PASS-THROUGH RATE: FIXED IN ACCORDANCE MASTER SERVICER: GMAC COMMERCIAL
WITH THE POOLING AND SERVICING AGREEMENT MORTGAGE CORPORATION
DENOMINATION: $2,528,000 SPECIAL SERVICER: CWCAPITAL ASSET
MANAGEMENT LLC
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF AUGUST 1, 2005 TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE PAYING AGENT: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CUSIP NO.: [U48138 YV 4](1) [46625Y TM
CLOSING DATE: AUGUST 24, 2005 5](2) [46625Y TT 0](3)
ISIN NO.: [USU48138YV44](1)
FIRST DISTRIBUTION DATE: [US46625YTM56](2) [US46625YTT00](3)
SEPTEMBER 15, 2005
COMMON CODE NO.: [022840525](1)
APPROXIMATE AGGREGATE [022841068](2)
CERTIFICATE BALANCE CERTIFICATE NO.: M-[--]
OF THE CLASS M CERTIFICATES
AS OF THE CLOSING DATE: $2,528,000
-------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS M CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class M Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of August 1, 2005 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class M
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class M Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class M Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: August 24, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon Remaining Certificate
transfer of, an interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-22
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP3, CLASS N
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS N CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN, EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF
SUCH CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE INITIAL PURCHASERS OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
-------------
(1) For Book-Entry Regulation S Investors Only.
PASS-THROUGH RATE: FIXED IN ACCORDANCE MASTER SERVICER: GMAC COMMERCIAL
WITH THE POOLING AND SERVICING AGREEMENT MORTGAGE CORPORATION
DENOMINATION: $7,586,000 SPECIAL SERVICER: CWCAPITAL ASSET
MANAGEMENT LLC
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF AUGUST 1, 2005 TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE PAYING AGENT: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CUSIP NO.: [U48138 YW 2](1) [46625Y TN
3](2) [46625Y TU 7](3)
CLOSING DATE: AUGUST 24, 2005
ISIN NO.: [USU48138YW27](1)
FIRST DISTRIBUTION DATE: [US46625YTN30](2) [US46625YTU72](3)
SEPTEMBER 15, 2005
COMMON CODE NO.: [022840550](1)
APPROXIMATE AGGREGATE [022841076](2)
CERTIFICATE BALANCE CERTIFICATE NO.: N-[--]
OF THE CLASS N CERTIFICATES
AS OF THE CLOSING DATE: $7,586,000
-------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS N CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class N Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of August 1, 2005 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class M
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class N Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class N Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: August 24, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS N CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon Remaining Certificate
transfer of, an interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-23
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP3, CLASS O
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS O CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN, EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF
SUCH CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE INITIAL PURCHASERS OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
-------------
(1) For Book-Entry Regulation S Investors Only.
PASS-THROUGH RATE: FIXED IN ACCORDANCE MASTER SERVICER: GMAC COMMERCIAL
WITH THE POOLING AND SERVICING AGREEMENT MORTGAGE CORPORATION
DENOMINATION: $5,056,000 SPECIAL SERVICER: CWCAPITAL ASSET
MANAGEMENT LLC
DATE OF POOLING AND SERVICING TRUSTEE: XXXXX FARGO BANK, N.A.
AGREEMENT: AS OF AUGUST 1, 2005
PAYING AGENT: LASALLE BANK NATIONAL
CUT-OFF DATE: AS SET FORTH IN THE ASSOCIATION
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN)
CUSIP NO.: [U48138 YX 0](1) [46625Y TP
8](2) [46625Y TV 5](3)
CLOSING DATE: AUGUST 24, 2005
ISIN NO.: [USU48138YX00](1)
FIRST DISTRIBUTION DATE: [US46625YTP87](2) [US46625YTV55](3)
SEPTEMBER 15, 2005
COMMON CODE NO.: [022840576](1)
APPROXIMATE AGGREGATE [022841084](2)
CERTIFICATE BALANCE CERTIFICATE NO.: O-[--]
OF THE CLASS O CERTIFICATES
AS OF THE CLOSING DATE: $5,056,000
-------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only
(3) For Institutional Accredited Investors Only.
CLASS O CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class O Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of August 1, 2005 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class O
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class O Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class O Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: August 24, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS O CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon Remaining Certificate
transfer of, an interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-24
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP3, CLASS NR
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THIS CLASS NR CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE REPRESENTS A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN, EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF
SUCH CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE INITIAL PURCHASERS OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
-------------
(1) For Book-Entry Regulation S Investors Only.
PASS-THROUGH RATE: FIXED MASTER SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
DENOMINATION: $25,284,216
SPECIAL SERVICER: CWCAPITAL ASSET
DATE OF POOLING AND SERVICING MANAGEMENT LLC
AGREEMENT: AS OF AUGUST 1, 2005
TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS PAYING AGENT: LASALLE BANK NATIONAL
DEFINED HEREIN) ASSOCIATION
CLOSING DATE: AUGUST 24, 2005 CUSIP NO.: [U48138 YY 8](1) [46625Y TQ
6](2) [46625Y TW 3](3)
FIRST DISTRIBUTION DATE:
SEPTEMBER 15, 2005 ISIN NO.: [USU48138YY82](1)
[US46625YTQ60](2) [US46625YTW39](3)
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE COMMON CODE NO.: [022840592](1)
OF THE CLASS NR CERTIFICATES [022841092](2)
AS OF THE CLOSING DATE: $25,284,216 CERTIFICATE NO.: NR-[--]
-------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS NR CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain on Sale Account and the REO Accounts, formed and
sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class NR Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of August 1, 2005 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class NR
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate represents a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended
(the "Code"). Each Holder of this Certificate, by acceptance hereof, agrees to
treat, and take no action inconsistent with the treatment of, this Certificate
in accordance with the preceding sentence for purposes of federal income taxes,
state and local income and franchise taxes and other taxes imposed on or
measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class NR Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class NR Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: August 24, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS NR CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon Remaining Certificate
transfer of, an interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
------------------ ---------------------------------------- ---------------------------- ----------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-25
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP3, CLASS S
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A.
THIS CERTIFICATE REPRESENTS AN INTEREST IN A GRANTOR TRUST UNDER THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED AN INVESTMENT REPRESENTATION LETTER FROM THE
PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND SUBSTANCE
SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE EFFECT THAT
SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS DEFINED IN SECTION
3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER SECTION 410(d) OF THE
CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A
MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH,
A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH
PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON
OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR PLANS AND THE APPLICATION OF
DEPARTMENT OF LABOR REGULATION ss. 2510.3-101).
EACH PURCHASER OF THIS CERTIFICATE SHALL BE REQUIRED TO DELIVER AN INVESTMENT
REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE POOLING AND
SERVICING AGREEMENT.
PERCENTAGE INTEREST EVIDENCED BY THIS MASTER SERVICER: GMAC COMMERCIAL
CERTIFICATE: 100% MORTGAGE CORPORATION
DATE OF POOLING AND SERVICING SPECIAL SERVICER: CWCAPITAL ASSET
AGREEMENT: AS OF AUGUST 1, 2005 MANAGEMENT LLC
CUT-OFF DATE: AS SET FORTH IN THE TRUSTEE: XXXXX FARGO BANK, N.A.
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: AUGUST 24, 2005
CERTIFICATE NO.: S-[--]
FIRST DISTRIBUTION DATE:
SEPTEMBER 15, 2005
CLASS S PERCENTAGE INTEREST: 100%
CLASS S CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CWCAPITAL ASSET MANAGEMENT LLC
is the registered owner of the interest evidenced by this Certificate in the
Class S Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of August 1, 2005 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2005-LDP3 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate represents a beneficial interest in a portion of a
grantor trust under subpart E, Part I of subchapter J of the Internal Revenue
Code of 1986, as amended, which portion consists of the Excess Interest and the
Excess Interest Distribution Account. Each Holder of this Certificate, by
acceptance hereof, agrees to treat, and take no action inconsistent with the
treatment of, this Certificate in accordance with the preceding sentence for
purposes of federal income taxes, state and local income and franchise taxes and
other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
the Excess Interest then distributable, if any, allocable to the Class S
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. All sums distributable on this Certificate are
payable in the coin or currency of the United States of America as at the time
of payment is legal tender for the payment of public and private debts.
The Certificates are limited in right of payment to Excess Interest
collected on the Mortgage Loans, all as more specifically set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, the Certificate Account and the Distribution Accounts will be held on
behalf of the Trustee on behalf of the Holders of Certificates specified in the
Pooling and Servicing Agreement and the Master Servicer (with respect to the
Certificate Account) or the Paying Agent (with respect to the Distribution
Accounts) will be authorized to make withdrawals therefrom. Amounts on deposit
in such accounts may be invested in Permitted Investments. Interest or other
income earned on funds in the Certificate Account will be paid to the Master
Servicer as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account shall
be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(f) of
the Pooling and Servicing Agreement 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 to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(f) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
The Class S Certificates will be issued in fully registered,
certificated form, in Denominations representing Percentage Interests of not
less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer of this Certificate,
the Transferor shall reimburse the Trust for any costs (including the cost of
the Certificate Registrar's counsel's review of the documents and any legal
opinions, submitted by the transferor or transferee to the Certificate Registrar
as provided in Section 5.02 of the Pooling and Servicing Agreement) incurred by
the Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: August 24, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS S CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-26
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP3, CLASS R
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION
4975 OF THE CODE. OR A GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA,
OR A CHURCH PLAN, AS DEFINED IN SECTION 3(33) OF ERISA, FOR WHICH NO ELECTION
HAS BEEN MADE UNDER SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH A "PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF A PLAN.
THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(2) AND
860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. EACH TRANSFEREE OF THIS
CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY TO DISQUALIFIED
ORGANIZATIONS, NON-U.S. PERSONS OR AGENTS OF EITHER, AS SET FORTH IN SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT AND SHALL BE REQUIRED TO FURNISH AN
AFFIDAVIT TO THE TRANSFEROR AND THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER
THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN
CODE SECTION 860E(e)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER
MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED
TRANSFEREE, (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND
INTENDS TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, (C) IT UNDERSTANDS THAT
IT MAY INCUR TAX LIABILITIES WITH RESPECT TO THIS CERTIFICATE IN EXCESS OF CASH
FLOWS GENERATED HEREBY, (D) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING
THIS CERTIFICATE AS THEY BECOME DUE, (E) IT WILL NOT CAUSE INCOME WITH RESPECT
TO THIS CERTIFICATE TO BE ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR
FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY OF SUCH PERSON
OR ANY OTHER U.S. PERSON AND (F) IT WILL NOT TRANSFER THIS CERTIFICATE TO ANY
PERSON OR ENTITY THAT DOES NOT PROVIDE A SIMILAR AFFIDAVIT. ANY PURPORTED
TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED
TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY
NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. THIS
CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST," AS DEFINED IN
TREASURY REGULATIONS SECTION 1.860E-l(c), AND THEREFORE, TRANSFERS OF THIS
CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO
TRANSFER AT A MINIMUM PRICE OR TO AN ELIGIBLE TRANSFEREE AS SPECIFIED IN
TREASURY REGULATIONS.
PERCENTAGE INTEREST EVIDENCED BY THIS MASTER SERVICER: GMAC COMMERCIAL
CERTIFICATE: 100% MORTGAGE CORPORATION
DATE OF POOLING AND SERVICING SPECIAL SERVICER: CWCAPITAL ASSET
AGREEMENT: AS OF AUGUST 1, 2005 MANAGEMENT LLC
CUT-OFF DATE: AS SET FORTH IN THE TRUSTEE: XXXXX FARGO BANK, N.A.
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: AUGUST 24, 2005
CUSIP NO.: [US48138 YR 3](1) [46625Y TF
FIRST DISTRIBUTION DATE: 0](2) [46625Y TH 6](3)
SEPTEMBER 15, 2005
CLASS R PERCENTAGE INTEREST: 100% ISIN NO.: [USU48138YR32](1)
[US46625YTF06](2) [US46625YTH61](3)
CERTIFICATE NO.: R-[--]
-------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS R CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
is the registered owner of the interest evidenced by this Certificate in the
Class R Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of August 1, 2005 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2005-LDP3 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Class R Certificate is a "residual interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income. The Holder of the largest Percentage Interest in the Class R
Certificates shall be the "tax matters person" for the Upper-Tier REMIC pursuant
to Treasury Regulations Section 1.860F-4(d), and the Master Servicer is hereby
irrevocably designated and shall serve as attorney-in-fact and agent for any
such Person that is the "tax matters person".
Pursuant to the terms of the Pooling and Servicing Agreement,
distributions, if any, on this Certificate shall be made by the Paying Agent in
an amount equal to such Person's pro rata share (based on the Percentage
Interest represented by this Certificate) and to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the
Distribution Date to the Person in whose name this Certificate is registered as
of the related Record Date. All sums distributable on this Certificate are
payable in the coin or currency of the United States of America as at the time
of payment is legal tender for the payment of public and private debts.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in a
Class R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Trustee under Section 5.02(d) of the Pooling and
Servicing Agreement to deliver payments to a Person other than such Person. The
rights of each Person acquiring any Ownership Interest in a Class R Certificate
are expressly subject to the following provisions: (A) No Person holding or
acquiring any Ownership Interest in a Class R Certificate shall be a
Disqualified Organization or agent thereof (including a nominee, middleman or
similar person) (an "Agent"), a Plan or a Person acting on behalf of or
investing the assets of a Plan (such Plan or Person, an "ERISA Prohibited
Holder") or a Non-U.S. Person and shall promptly notify the Master Servicer, the
Trustee and the Certificate Registrar of any change or impending change to such
status; (B) In connection with any proposed Transfer of any Ownership Interest
in a Class R Certificate, the Certificate Registrar shall require delivery to
it, and no Transfer of any Class R Certificate shall be registered until the
Certificate Registrar receives, an affidavit substantially in the form attached
to the Pooling and Servicing Agreement as Exhibit D-1 (a "Transfer Affidavit")
from the proposed Transferee, in form and substance satisfactory to the
Certificate Registrar, representing and warranting, among other things, that
such Transferee is not a Disqualified Organization or Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person, and that it has reviewed the provisions
of Section 5.02(d) of the Pooling and Servicing Agreement and agrees to be bound
by them; (C) Notwithstanding the delivery of a Transfer Affidavit by a proposed
Transferee under clause (B) above, if the Certificate Registrar has actual
knowledge that the proposed Transferee is a Disqualified Organization or Agent
thereof, an ERISA Prohibited Holder or a Non-U.S. Person, no Transfer of an
Ownership Interest in a Class R Certificate to such proposed Transferee shall be
effected; and (D) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall agree (1) to require a Transfer Affidavit from any
prospective Transferee to whom such Person attempts to transfer its Ownership
Interest in such Class R Certificate and (2) not to transfer its Ownership
Interest in such Class R Certificate unless it provides to the Certificate
Registrar a letter substantially in the form attached to the Pooling and
Servicing Agreement as Exhibit D-2 (a "Transferor Letter") certifying that,
among other things, it has no actual knowledge that such prospective Transferee
is a Disqualified Organization, an Agent thereof, an ERISA Prohibited Holder or
a Non-U.S. Person.
The Class R and Class LR Certificates will be issued in fully
registered, certificated form, in Denominations representing Percentage
Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: August 24, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-27
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP3, CLASS LR
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION
4975 OF THE CODE. OR A GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA,
OR A CHURCH PLAN, AS DEFINED IN SECTION 3(33) OF ERISA, FOR WHICH NO ELECTION
HAS BEEN MADE UNDER SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH A "PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF A PLAN.
THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(2) AND
860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. EACH TRANSFEREE OF THIS
CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY TO DISQUALIFIED
ORGANIZATIONS, NON-U.S. PERSONS OR AGENTS OF EITHER, AS SET FORTH IN SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT AND SHALL BE REQUIRED TO FURNISH AN
AFFIDAVIT TO THE TRANSFEROR AND THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER
THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN
CODE SECTION 860E(e)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER
MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED
TRANSFEREE, (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND
INTENDS TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, (C) IT UNDERSTANDS THAT
IT MAY INCUR TAX LIABILITIES WITH RESPECT TO THIS CERTIFICATE IN EXCESS OF CASH
FLOWS GENERATED HEREBY, (D) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING
THIS CERTIFICATE AS THEY BECOME DUE, (E) IT WILL NOT CAUSE INCOME WITH RESPECT
TO THIS CERTIFICATE TO BE ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR
FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY OF SUCH PERSON
OR ANY OTHER U.S. PERSON AND (F) IT WILL NOT TRANSFER THIS CERTIFICATE TO ANY
PERSON OR ENTITY THAT DOES NOT PROVIDE A SIMILAR AFFIDAVIT. ANY PURPORTED
TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED
TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY
NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. THIS
CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST," AS DEFINED IN
TREASURY REGULATIONS SECTION 1.860E-l(c), AND THEREFORE, TRANSFERS OF THIS
CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO
TRANSFER AT A MINIMUM PRICE OR TO AN ELIGIBLE TRANSFEREE AS SPECIFIED IN
TREASURY REGULATIONS.
PERCENTAGE INTEREST EVIDENCED BY THIS MASTER SERVICER: GMAC COMMERCIAL
CERTIFICATE: 100% MORTGAGE CORPORATION
DATE OF POOLING AND SERVICING SPECIAL SERVICER: CWCAPITAL ASSET
AGREEMENT: AS OF AUGUST 1, 2005 MANAGEMENT LLC
CUT-OFF DATE: AS SET FORTH IN THE TRUSTEE: XXXXX FARGO BANK, N.A.
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: AUGUST 24, 2005
CUSIP NO.: [U48138 YS 1](1) [46625Y TG
FIRST DISTRIBUTION DATE: 8](2) [46625Y TJ 2](3)
SEPTEMBER 15, 2005
ISIN NO.: [USU481384S15](1)
CLASS LR PERCENTAGE INTEREST: 100% [US46625YTG88](2) [US466254TJ28](3)
CERTIFICATE NO.: LR-[--]
-------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS LR CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
is the registered owner of the interest evidenced by this Certificate in the
Class LR Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of August 1, 2005 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2005-LDP3 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Class LR Certificate is a "residual interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income. The Holder of the largest Percentage Interest in the Class LR
Certificates shall be the "tax matters person" for the Lower-Tier REMIC pursuant
to Treasury Regulations Section 1.860F-4(d), and the Master Servicer is hereby
irrevocably designated and shall serve as attorney-in-fact and agent for any
such Person that is the "tax matters person".
Pursuant to the terms of the Pooling and Servicing Agreement,
distributions, if any, on this Certificate shall be made by the Paying Agent in
an amount equal to such Person's pro rata share (based on the Percentage
Interest represented by this Certificate) and to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the
Distribution Date to the Person in whose name this Certificate is registered as
of the related Record Date. All sums distributable on this Certificate are
payable in the coin or currency of the United States of America as at the time
of payment is legal tender for the payment of public and private debts.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in a
Class LR Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Trustee under Section 5.02(b) of the Pooling and
Servicing Agreement to deliver payments to a Person other than such Person. The
rights of each Person acquiring any Ownership Interest in a Class LR Certificate
are expressly subject to the following provisions: (A) No Person holding or
acquiring any Ownership Interest in a Class LR Certificate shall be a
Disqualified Organization or agent thereof (including a nominee, middleman or
similar person) (an "Agent"), a Plan or a Person acting on behalf of or
investing the assets of a Plan (such Plan or Person, an "ERISA Prohibited
Holder") or a Non-U.S. Person and shall promptly notify the Master Servicer, the
Trustee and the Certificate Registrar of any change or impending change to such
status; (B) In connection with any proposed Transfer of any Ownership Interest
in a Class LR Certificate, the Certificate Registrar shall require delivery to
it, and no Transfer of any Class LR Certificate shall be registered until the
Certificate Registrar receives, an affidavit substantially in the form attached
to the Pooling and Servicing Agreement as Exhibit D-1 (a "Transfer Affidavit")
from the proposed Transferee, in form and substance satisfactory to the
Certificate Registrar, representing and warranting, among other things, that
such Transferee is not a Disqualified Organization or Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person, and that it has reviewed the provisions
of Section 5.02(d) of the Pooling and Servicing Agreement and agrees to be bound
by them; (C) Notwithstanding the delivery of a Transfer Affidavit by a proposed
Transferee under clause (B) above, if the Certificate Registrar has actual
knowledge that the proposed Transferee is a Disqualified Organization or an
Agent thereof, an ERISA Prohibited Holder or a Non-U.S. Person, no Transfer of
an Ownership Interest in a Class LR Certificate to such proposed Transferee
shall be effected; and (D) Each Person holding or acquiring any Ownership
Interest in a Class LR Certificate shall agree (1) to require a Transfer
Affidavit from any prospective Transferee to whom such Person attempts to
transfer its Ownership Interest in such Class LR Certificate and (2) not to
transfer its Ownership Interest in such Class LR Certificate unless it provides
to the Certificate Registrar a letter substantially in the form attached to the
Pooling and Servicing Agreement as Exhibit D-2 (a "Transferor Letter")
certifying that, among other things, it has no actual knowledge that such
prospective Transferee is a Disqualified Organization, an Agent thereof, an
ERISA Prohibited Holder or a Non-U.S. Person.
The Class R and Class LR Certificates will be issued in fully
registered, certificated form, in Denominations representing Percentage
Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: August 24, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS LR CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT B
MORTGAGE LOAN SCHEDULE
JPMCC 2005-LDP3
MORTGAGE LOAN SCHEDULE (COMBINED)
Loan # Mortgagor Name Property Address
------ -------------- ----------------
1 Pavilions at Buckland Hills L.L.C. 000 Xxxxxxxx Xxxxx Xxxxx
2 UCF Hotel Venture Various
2.1 UCF Hotel Venture 0000 Xxxxxxxxx Xxxxxxxxx
2.2 UCF Hotel Venture 0000 Xxxxxxxxx Xxx
2.3 UCF Hotel Venture 0000 Xxxxxxxxx Xxxxxxxxx
3 FSH Boylston, Inc. 000 Xxxxxxxx Xxxxxx
4 Xxxxx Xxxxxx, L.P. 0000 Xxxxxxxxxx Xxxxxxx
0 XXXXX Xxxxxxx REIT III Corp. K 10105 & 00000 Xxxxxxx Xxxxxxx Xxxxxxxxx
6 New Center LLC, New Center Parking LLC 0000 Xxxx Xxxxx Xxxx
7 EFC Investors, Ltd. 00000 Xxxxxxx Xxxx
8 Aliso Viejo Business Trust 00000 Xxxxx Xxxxx Xxxx
9 Lexington TNI Xxxxxx X.X. 0000 Xxxxxxxx Xxxxxxx
10 915 Broadway Associates LLC 000 Xxxxxxxx
00 Xxxxxxxxxxx Xxxxx, X.X.X. 00000 Xxxxx Xxxx
12 Inland Western Cupertino Tantau, L.L.C. 00000 Xxxxx Xxxxxx Xxxxxx
13 WVR Real Estate II LLC 000 Xxxxxxx Xxxxxxx (Xxxxx 32)
14 Tenants in Common 0000 Xxxxxx Xxxxx XxxxxXxxx
00 Xxxx 00X Associates Limited Partnership 00 Xxxxx Xxxxxxx Xxxxxx
16 Xxxxxxx Capital Corporation 0000 00xx Xxxxxx
Xx Xxxxxxx, LLC, 1860 Lincoln A, LLC, 1860 Lincoln C, LLC,
17 1860 Lincoln D, LLC, 1860 Lincoln E, LLC 0000 Xxxxxxx Xxxxxx
18 1601 Tower Properties, LLC 0000 Xxxxxxxxx Xxxxxxxxxx Xxxxxx
19 TowneMet Kenilworth Limited Partnership 000 Xxxxxxxxxx Xxxxx
20 Route 27 Associates, Ltd. 0000 XX Xxxxxxx 00 Xxxxx
21 CWS Xxxxxx on Xxxxxxx, X.X. and Janric Enterprises, Ltd. 0000 Xxxxxxx Xxxx
22 Avco Center Corporation 00000 Xxxxxxxx Xxxxxxxxx
00 Xxxxxxxxx Kalamazoo L.P. 0000 Xxx Xxxxxx Xxxxx
24 Lexington Broadfield L.P. 0000 Xxxxxxxxxx Xxxxxxxxx
25 Prudent Investment Company LLC 0000 Xxxx Xxxxxxx Xxxxxx
26 Extra Space Properties Twenty One, LLC Various
26.1 Extra Space Properties Twenty One, LLC 0000 Xxxxxxx Xxxxxx
26.2 Extra Space Properties Twenty One, LLC 0000 Xxxxx Xxxxxx Xxxxxxxxx
26.3 Extra Space Properties Twenty One, LLC 000 Xxxxx Xxxxxxxxxx Xxxxx
26.4 Extra Space Properties Twenty One, LLC 0000 Xxxxx Xxx Xxxxx Xxxxxx Xxxx
26.5 Extra Space Properties Twenty One, LLC 00000 Xxxx Xxxxxx Xxxxxxxxx
26.6 Extra Space Properties Twenty One, LLC 00000 Xxxxxxx Xxxxxxxxx
26.7 Extra Space Properties Twenty One, LLC 0000 Xxxxxx Xxxxx Xxxxx
0000 Xxxx Xxxxxx Xxxxx and
27 TIC Royal Tech Center, LP 0000 Xxxx Xxxx Xxxxx
00 XXXX Properties, Arizona, L.L.C. 0000 Xxxx Xxxxxx Xxxxxx Xxxx
29 Centrum/Belleview Limited Liability Company 0000 Xxxx Xxxxxxxxx Xxxxxx
30 1504 Third LLC 0000 Xxxxx Xxxxxx
00 Xxxxxxxxx Xxxxxxxxxxx L.P. 000 Xxxxxxxxx Xxxxxxxxx Xxxxx
32 Inland Western Temecula Xxxx, X.X.X. 00000, 32401, 32413, 00000 Xxxxxxx 00 Xxxxx
0000-0000 Xxxx Xxxxx Highway 14,
33 Inland Western Grapevine Limited Partnership 0000 Xxx X. Xxxxx Xxxxxx
34 333 Meadowlands Venture, LLC 000 Xxxxxxxxxxx Xxxxxxx
35 FJ Livonia Portfolio, L.P. 00000 0 Xxxx Xxxx
00 Xxxxxx Xxxx Xxxxx Company LLC 4045 and 0000 Xxxxx Xxxxxxx Xxxxxx
37 Xxxxx Technology Centre, LLC 39575 and 00000 Xxxxx Xxxxx
00 0000 Xxxx LLC 0000 Xxxxxxxx Xxxxxxxxx
00 Xxxxxx Xxxxxxx Xxxxxxx Bear Creek Limited Partnership 0000 Xxxxxxx 0 Xxxxx
40 0000 Xxxxxxxxxxxx Xxxxxx, LLC 0000 Xxxxxxxxxxxx Xxxxxx
41 Lexington Xxxxx Creek L.P. 0000 Xxxxx Xxxxx Xxxxx
00000, 15280,15285 Xxxxxxxxx Xxxxxxx
00 Xxxxxxx Xxxxxxx Offices, LLC Drive and 15160,15220 Xxxxxxx Road
43 El Paseo Collection, El Paseo Collection II, LP 73061-73081 Xx Xxxxx
00 Xxxxxxx Xxxx, X.X.X. 0000 Pago Pago Avenue
00 Xxxxxxxxx Xxxxxx Shopping Center, L.L.C. 0000 Xxxxx 00
46 New Start Associates, LLC 128-28 25th Avenue
47 Bayshore Property Corporation 0000 Xxxxxxxxxx Xxxxxxxxx
48 The Crest at Fair Oaks, LLC 00000 Xxxx Xxxx Xxxxxxxxx
49 Riverside Group, LLC 2315, 2325-2329 and 0000 Xxxxxxxx Xxxx
00 Xxxxxxxxx Xxxxxxxxxx L.P. 0000 Xxxxxxxxxx Xxxxx
00 XxxXxx/Xxxx-Xxx Xxxxxxx Xxxx-Xxx Hotel, L.L.C. 000 Xxxxxxxx Xxxxxx
00 Xxxxxxxxx Xxxx Xxxxxx X.X. 00000 Xxxxxxx Xxxxxxxxx
53 Xxxx/Chaknova II LLC 0000 Xxxxxx Xxxxx Xxxxx
54 Inland Western Cocoa Beach Cornerstone, L.L.C. 5645 & 0000 Xxxxx Xxxxxxxx Xxxxxx
55 Bayshore Property Corporation 0000 Xxxx Xxxxxxx Xxxxxxxxx
56 12300-12301 Xxxxxxx Place, LLC 12300 and 00000 Xxxxxxx Xxxxx
57 Lexington Centerpoint L.P. 0000 Xxxxxxxxxxx Xxxxxxxxx
00 Xxxxx Xxxxx Xxxxxxx I, LLC 0000 Xxxx Xxxx Xxxxx
59 International Self Storage Limited Partnership 2310 Via Xxxxxxx
60 Town Center West Shopping Center, LLC 209-345 Town Center West
61 St. Xxxxxx Northgate LLC 1401-1417 and 0000 Xxxxx Xxxx Xxxxxxx
62 Maleno Diversified Properties, LLC 0000 Xxxxxxxxx Xxxxx
63 North Colony Apartments, LLC 000 Xxxxxxx Xxxx
00 Xxxxxxxx Management of New York, Inc. 0000 Xxxxxx Xxxx Xxxx
65 HV Investors LLC 000 Xxxxxx Xxxxxx
66 Main Corner, L.L.C. 650 & 000 Xxxxx Xxxxx Xxxx
67 Sunset La Mesa Partners, LLC, Boulder City Partners LLC 1311 & 0000 Xxxx Xxxxxx Xxxx
00 Xxxxxxx, X.X.X. 0000-0000 Xxxxxxxxx 000 Xxxxxx
00 Xxxx Xxxxxxx, LLC 0000 Xxxxx Xxxx Xxxx
70 ACV, Ltd., Angler's Cove West, Ltd. 000 Xxxxxxxx Xxxx
71 Mobile Home Park V, LLC 0000 Xxxxxxxx Xxxxx
72 Inland Western Pawtucket Boulevard, L.L.C. 295-333 Armistice Boulevard
73 10555 LLC 00000 Xxxx Xxxxxx
74 Xxxxxx University Village, LLC. 0000 Xxxx 0xx Xxxxxx
00 Xxxxxxxx Xxxxx Realty Enterprises, L.L.C., 00000 Xxxxx Xxxxxxx Xxxxxx
XXX Enterprises, L.L.C. 0000 Xxxxxxxx Xxxx Xxxxx, 0000,
00 XXXX Xxxx Xxxxxx Holdings, LLC 3140, 3025 Harbor Lane North
77 Woodhurst, L.L.C. and Cindex, LLC SEQ US 22 and SR 48
78 Inland Western Fort Mill West Town, L.L.C. 1750 - 0000 Xxxx Xxxxxxx 160
79 12830 Praire Avenue, LLC 00000 Xxxxxxx Xxxxxx
80 Nottingham Towers Investors LLC 00 Xxxxxxxxxx Xxxxxxx
00 0000 Xxxxxxxx LLC 0000 Xxxxxxxx Xxxx
82 8522 C Avenue, LLC 8522 C Avenue
83 The Sovereign Partners, LLC 0000 Xxxxxxxxx Xxxxxx
84 Regency Xxxxx Properties, LLC; The Lack Family LLC 0000 Xxxxxxxxx Xxxxx
85 Plum Realty, LLC 6613 & 0000 Xxxxx Xxxxx Xxxxxxx
86 Palm Grove, Limited Partnership 0000 Xxxx Xxxxxx and 0000 X. Xxxxxx Xxxx
87 Sugarcreek Crossing Permanent, LLC 5800-5840 Wilmington Pike
88 C.I.C. Arizona LLC 00000 Xxxxx 0xx Xxxxxx
89 400 Long Beach Limited Partnership 000 Xxxx Xxxxx Xxxxxxxxx
00 0000 Xxxxxx, L.L.C. 0000 Xxxx Xxxxxx Xxxxx
91 Ceres-Quarry LLC 000-000 Xxxxxx Xxxx
92 Cobleskill Plaza Associates, LLC 000 Xxxxx Xxxx
00 Xxxxxx Western Naperville Route 59, L.L.C. 0000 Xxxxx Xxxxxxxx Xxxxx 59
94 Stor All Xxxx Xxxxxx SPE, LLC 000 Xxxx Xxxxxxxx Xxxxxx
95 North Regional I, LLC Various
95.1 520 and 000 Xxxxxxxx Xxxxx Xxxxx
95.2 10401 Xxxx Xxxxx Road
96 Sandia East Apartments, Inc. 000 Xxxxx Xxxxxxx 00
00 Xxxxxx Xxxxx, LLC 0000 Xxxxxxxxxx Xxxx
00 Development Limited Partnership #000 000 Xxxx Xxxxx Xxxxxxxxx
99 400-408 North Xxxxx LLC 000-000 Xxxxx Xxxxx Xxxxxx
100 Parkview Townhomes Limited Partnership 0000 Xxxxx Xxxxxxx Xxxxx Xxxxxx
101 Stor All LaGrange SPE, LLC 0000 XxXxxxxx Xx
000 Xxxxxxxxx Partners, LP 0000 Xxx Xxxx Xxxxxx
103 Haenhouma LLC 0000 Xxxxxx Xxxxxx Xxxx Xx. Xxxxxxxxx
104 Acorn Plaza Shopping Center, LLC 0000 Xxxxx Xxxxxxx Xxxx
105 DJT Winston-Salem, LLC 0000 Xxxxxxxxxx Xxxxxx
106 Lakeside Medical Building, LLC 0000 Xxxxx Xxxxxx
107 TMD Southglen II, LLC West Central Avenue and Tyler Avenue
108 Apache Trace Associates, LLC, Old Albany Apartments 0000 Xxxx Xxxxx Xxxxx 0
Associates, L.L.C Xxxxxxx X. Xxxxxxx, as trustee under
the trust of Xxxxxxx X. Xxxxxxx Grat for Xxxxx X.
Xxxxxxxx, Xxxxxxx X. Xxxxxxx, as trustee under the Trust
of Xxxxxxx X. Xxxxxxx Grat for Xxxxxxx X. Xxxxxxx,
Xxxxxxx
109 X. Xxxxxxx, as trustee under the Trust of Xxxxxxx X. 000 Xxxx Xxxxxx Xxxx
110 916 Deodar Street, LLC 0000 Xxxx 0xx Xxxxxx and 000 Xxxxxx Xxxxxx
Xxxxx Xxxxx Owner 1 LLC, South Shore Owner 2 LLC,
South Shore Owner 3 LLC, South Shore Owner 4 LLC,
111 South Shore Owner 5 LLC and South Shore Owner 6 LLC 0000 Xxxxxx Xxx Xxxxx
112 Central Santa Xxxxx, LLC 0000-0000 Xxxxx Xxxxxxxx
000 Xxxx-Xxxxxx Xxxxx 04, L.P. Highway 281 and Mission Hills Road
114 Xxxxxxxx Investments, LLC 00000 Xxxxxxxx Xxxxx
115 Maricopa Sage, LLC 00000 Xxxxxxxx Xxxx
116 Commonwealth Midtowne, LLC, Xxxxx Midtowne, LLC 0000 Xxxxx Xxxxxx Xxxxxx
117 Dayton Carriage House Apartments Limited Partnership 000 Xxxx Xxxxxx Xxxx
118 McCandles Venture Tech, LLC 00000 Xxxxxxx Xxxxx
119 Stor All Middletown SPE, LLC 000 Xxxx Xxxxx Xxxxx
000 Xxxxx Stonegate, LLC 00000 Xxxxxx Xxxxxx Road
121 Xxxxxx Landings Limited 0000 Xxxxxx Xxxxxxx Xxxxx
0000-0000 Xxxxx Xxxxxx Xxxxxx
122 1204-1216 Euclid Avenue, LLC and 000 Xxxx Xxxx Xxxxxx
123 Paseo Escada, LLC 73811 El Paseo
124 NEC Power and Baseline Investors, LLC 0000 Xxxxx Xxxxx Xxxx
125 2516 Broadway, LLC 2500 & 0000 Xxxxxxxx Xxxxxx
126 CWI Holdings, L.L.C. 0000 Xx Xxxxxx Xxxx
127 JAHCO Xxxx Oaks, L.L.C. 0000 Xxxxx Xxxxxxxx Xxxxxx
000 Xxxxxxx Xxxxx Associates 0000 Xxxxxxxxxx Xxxxx
129 Javse Corinthian, LLC 570, 595, 674 and 000 Xxxxxxxxxx Xxx
000 Xxxxxxxx Xxxxxxx Properties, LLC 00000 XX Xxxxxxx 00 Xxxxx
131 Xxxxxx Town & Country Square, LLC 0000-0000 Xxxxx Xxxxxx
132 Del Xxxxx Investments, Inc. 0000-0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxxx
133 1501 Mockingbird, L.P. 0000 Xxxx Xxxxxxxxxxx Xxxx
134 Xxxx Xxxxxxx Group, LLC 0000 Xxxx Xxxxxxx Xxxxxxxxx
135 Rolling Xxxxxxx Shopping Center, LLC 0000-0000 Xxxxxxx Xxxxx Xxxx
136 Redwood Apartments, Inc. 000 Xxxxxxxxx Xxxxxx
137 MV/ALG Xxxxxx Creek Limited 0000 Xxxxxx Xxxx Xxxx
138 Stor All Reynoldsburg SPE, LLC 0000 Xxxx Xxxx Xxxxxx
139 FPA Xxxxxxxx Associates, LLC 000 Xxxxxxxx Xxxxxx
140 VAS Development Corp. 00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx Properties I, LLC, Little Xxxxxxx Properties,
141 LLC, Xxxxxxxxxx Ventures LLC, RKR Investments, LLC 000 Xxxx Xxxxxxx Xxxxxx
000 Xxxxx Xxxxxxx Xxxxxxxx, X.X. 00 Xxxxxxxxx 000xx Xxxxxx
143 0000 Xxxxxx Xxxxxx, LLC 0000 Xxxxxx Xxxxxx and 0000 Xxxxx Xxxxxx
000 Xxxxxxx-Xxxxxxxxxx, LLC 0000 -0000 Xxxxx Xxxxxxx Xxxxxx
145 JDG, LLC 1401 & 0000 Xxxxxxxx Xxxx Xxxxx
JES Marina Club LLC, AGM Marina Club LLC, Xxxxxxxxx
Xxxxxx Club LLC, Xxxxxxxxxx Xxxxxx Club LLC, Xxxxxx
Xxxxxx Club LLC, GM Marina Club
146 LLC, Marble & Poyson Marina Club LLC, Xxxxxxxx Xxxxxx Club LLC 0000 Xxxxx 000xx Xxxxxx
147 Bar Triple R 17615-17633 Ventura Boulevard
148 Mondial Properties, L.L.C. 000 Xxxxx Xxx Xxxxxxxx Xxxxxx
000 Xxxxxxxxx Self-Storage, LLC 0000 Xxxxxxx Xxxx Xxxxx
150 Four G Partners LLC 0000 Xxxxxx Xxxx
151 Unionville Station Townhomes, LLC 00-00 Xxxxxxxx Xxxxxx
152 Corona Covenant Group, L.P. 000 & 000 Xxxx Xxxxxxx Xxxxxx
000 Evergreen Partnership, LLC 000-000 Xxxxx Xxxxxx Xxxxx
154 Hamburg Southshore Properties, LLC 0000 Xxxxxxxxxxxx Xxxxxxxxx
155 Xxxxxxx Properties Jefferson Village, LLC 0000 Xxxxxxxxx Xxxxxxx
156 Stor All Xxxxxxx Drive SPE, LLC 0000 Xxxxxxx Xxxxx
157 DJT St. Xxxxxxx, LLC, CAT St. Xxxxxxx, LLC 000 Xxxxx Xxxx Xxxx
158 000 Xxxx Xxxxxx, LLC 000 Xxxx Xxxxxx
159 All American Storage of Bloomington, LLC 0000 Xxxxx Xxxxxxxxx Xxxxxx
160 Professional Center of Longwood, LLC 000 Xxxx Xxxxx Xxxx 434
161 Brandywood Holdings, LLC 0000 Xxxxxx Xxx
1440, 1480, 1490 Xxxx 0xx Xxxxxx,
000 Jake Properties, L.L.C. 000 Xxx Xxxxx Xxxxxxxxx
163 JMT Resources LLC 0000 Xxxx Xxxxxxx Xxxxxx
164 M/MD Group II, LLC Various
164.1 000 Xxxxxxxxx 00xx Xxxxxx
164.2 0000 Xxxxxxxxx 00xx Xxxxxx
164.3 0000 Xxxxxxxxx Xxxxx Xxxx
165 Godiva Holdings, LLC 000 Xxxxx Xxxxxx Xxxxxx
166 Strawberry Hill EGV, LLC 000-000 Xxxxxxx Xxxx
167 Stor All Whitehall SPE, LLC 0000 Xxxx Xxxx Xxxxxx
168 All American Storage-East, LLC 000 Xxxxxxxx Xxxxx
169 Young Columbus, LLC 0000 Xxxxxx Xxxxxx
170 Stor All West 5th Avenue SPE, LLC 000 Xxxx Xxxxx Xxxxxx
000 0000 X. Xxxxxxx, LLC 0000 Xxxxx Xxxxxxx Xxxxxx
172 Wydown Investments, LLC, Apsco Investments, LLC, 0000 Xxxxx 0xx Xxxxxx
Crispin Investments, LLC
173 Melbourne Realty Company, LLC 000 Xxxx Xxxxxx
174 Castle Sulpher, LLC, Royle Real Estate, LLC 000 Xxxxx Xxxxxx Xxxxxxx Xxxxxxx
000 Xxxxxxx Crossing Retail Investors Limited Partnership 000 Xxxx Xxxxxx
000 XXXX LLC 0000 Xxxxx Xxx Xxxxxx Xxxxxx
177 Tamarind Place Apartments, LLC 0000 Xxxx Xxxxx
000 XX Equity I, LLC; AR Equity II, LLC; AR Equity III, LLC; 0000 Xxxx Xxx Xxxxxxx Xxxxxxx Xxxxx
XX Equity IV, LLC
179 16235 Xxxxxxx Avenue, LLC 00000 Xxxxxxx Xxxxxx
000 00000 Xxxxxxx Blvd., LLC 00000 Xxxxxxx Xxxxxxxxx
181 Palo Verde Mini Storage, L.L.C. 000 Xxxx XxXxxxxxx Xxxx
182 9711 MG Road, L.L.C. 0000 Xxxxxxx Xxxxx Xxxx
183 Chadron Partners, LLC 12833, 12839, & 00000 Xxxxxxx Xxxxxx
184 000 X. Xxxxxx X-0, LLC 000 Xxxx Xxxxxx X-0
185 Haencrockett LLC 0000 Xxxx Xxxx 304
186 Xxxxxx Industrial Park, LLC 0000-0000 Xxxxxx Xxxxxx
187 7934 Laurel Canyon Blvd., LLC 0000 Xxxxxx Xxxxxx Xxxxxxxxx
188 Haendelrio LLC 0000 Xxxxxxxx Xxxxxxxxx
189 6717 Xxxxx Avenue, LLC 0000 Xxxxx Xxxxxx
190 CPSC Realty Investors, LP 0000 Xxxxxxx Xxxxx Xxxxxxx
191 3410-3418 Drew Street, LLC 0000-0000 Xxxx Xxxxxx
192 000-00 Xxxxxxxx Xxxx. Corp. 000-00 Xxxxxxxx Xxxxxxxxx
193 Shady Grove Manufactured Home Community, LLC 0000 Xxxxxxx Xxxx XX
194 DOR, L.L.C. 000 Xxxx Xxx Xxxxx
000 Xxxxxx Village Partners, LLC 000 Xxxxxxxxx Xxxxx
000 Xxx Xxxxxx Xxxxxxxxx, LLC 000 Xxxx Xxxxxxx Xxxx
197 Bristol Square Partners LLC 0000 Xxxxxxx Xxxxxx
198 0000 Xxxxxxx Xxxxxx, LLC 0000 Xxxxxxx Xxxxxx
199 1850 Xxx Xxxxxxxxxx, LLC 0000 Xxx Xxxxxxxxxx Xxxxxxxxx
200 0000 Xxxxxxx Xxxxxx, LLC 0000 Xxxxxxxx Xxxxxx
000 Xxxxxxxx Dental LLC 00000 Xxxxx Xxxxxx XX
202 Pebblebrook Apartments, LLC 0000 Xxxxx Xxxxxxxx Xxxxxx
203 0000 Xxxxxxx Xxxxxx, LLC 0000 Xxxxxxx Xxxxxx
000 Xxxx Brookhollow, LLC 0000 Xxxxx Xxxxx
205 0000 Xxxxxxx Xxxxxx, LLC 0000 Xxxxxxx Xxxxxx
206 San Antonio Regency Manor 0000 Xxxxxxxxxx Xxxxx
207 The Xxxxx Group, LLC 0000 Xxxxx Xxxxxxxx Xxxx
208 MBB Property, LLC 000-000 Xxxxx Xxxxxx Xxxxxx
209 0000 Xxxxxxxxx Xxxx LLC 0000 Xxxxxxxxx Xxxx
000 Space Group, LLC 0000 Xxxxxxx Xxxxxxx Xxxxxxx
000 Xxxxxxx Xxxxx Marketplace, LLC 0000 Xxxx Xxxxx Xxxxxxx Xxxx Xxxxx
000 00000 Xxxxxxxxx Avenue, LLC 00000 Xxxxxxxxx Xxxxxx
000 Xxxxxx Xxxxxxx xx Xxxx, X.X. 00000 South 4000 West
214 Cablecar Realty, LLC 00-00 Xxxxxx Xxxxxx Xxxx
215 00000 Xxxxxxxx Xxxxxx, LLC 00000 Xxxxxxxx Xxxxx
216 1320 E. Avenue Q, LLC 0000 Xxxx Xxxxxx X
217 Sabra Tower, Inc. 0000 Xxxxxxx Xxxx
218 Xxxxxx Professional Building, LLC 00000 Xxxxxxxx Xxxx
219 LOM Realty LLC 000 Xxxx Xxxxxxx Xxxxx
220 Crossroads Plaza, INC. 0000 Xxxxxxx Xxxx
000 Xx Xxxxx I, LLC and Oneclair, LLC 000 XxXxxxxx Xxxxx
000 Xxxxxxxxxx Xxxxxxx LLC 0000 Xxxxxxxxxx Xxxxxxx Xxxxxxx
223 MV/ALG TWIN CEDARS LIMITED 0000 00xx Xxxxxx Xxxxx XX
000 Xxxxxxxxxx Xxxx HE, LLC 0000-0000 Xxxx Xxxx Xxxx
225 000 X. Xxxxx Xxxxx, LLC 000 Xxxxx Xxxxx Xxxxx
226 Tejon/Alameda LLC 0000-0000 Xxxx Xxxxxxx
000 XXX XX Plaza, LLC 0000 Xxxxxxx Xxxxxxxx Xxxxx
228 12036 Xxxx Street, LLC 00000 Xxxx Xxxxxx
229 Xxxxx Holdings LLC 00000 Xxxxxx Xxxx
230 Pinehollow Properties LLC 000 Xxxxx Xxxx,0000 & 0000 Xxxx Xxxxxx Xxxx
0000 Xxxx Xxxxx Trickum Road
231 Mountain Park Plaza, LLC & 0000 Xxxxxxxxxx Xxxx
000 XXX Enterprises, LLC 0000 Xxxxxxx Xxxxxxx
Xxxx # Xxxx Xxxxx Zip Code County Property Name Size Measure
------ ---- ----- -------- ------ ------------- ---- -------
1 Xxxxxxxxxx XX 00000 Hartford Shoppes at Xxxxxxxx Xxxxx 000000 Square Feet
2 Xxxxxxx XX 00000 Orange Universal Hotel Portfolio 2400 Rooms
2.1 Xxxxxxx XX 00000 Orange Portofino Bay 750 Rooms
2.2 Xxxxxxx XX 00000 Orange Royal Pacific 1000 Rooms
2.3 Xxxxxxx XX 00000 Orange Hard Rock 650 Rooms
3 Xxxxxx XX 00000 Suffolk Four Seasons Boston 273 Rooms
4 Xxxxxxx Xxxxx XX 00000 Wichita Xxxxx Xxxxxx 000000 Xxxxxx Xxxx
0 Xxx Xxxxx XX 00000 San Diego RREEF - Pacific Center 000000 Xxxxxx Xxxx
0 Xxxxxxx XX 00000 Xxxxx New Center One Building 000000 Xxxxxx Xxxx
0 Xxxxxx XX 00000 Los Angeles Encino Financial Center 000000 Xxxxxx Xxxx
0 Xxxxx Xxxxx XX 00000 Orange Lowe's Xxxxx Xxxxx 000000 Square Feet
9 Xxxxxx XX 00000 Dallas LXP-Nissan 000000 Xxxxxx Xxxx
00 Xxx Xxxx XX 00000 New York 000 Xxxxxxxx 214721 Square Feet
11 Novi MI 48377 Oakland Brownstones Apartments 000 Xxxxx
00 Xxxxxxxxx XX 00000 Santa Xxxxx Xxxxxx Foundation 100352 Square Feet
00 Xxx Xxxxxxx XX 00000 Orange Big X Xxxx Xxxxxx 000000 Xxxxxx Xxxx
14 Xxxxxx XX 00000 Gwinnett Preston Hills at Mill Creek 464 Units
15 Baltimore MD 21201 Baltimore City Xxxxxxx Center South 318766 Square Feet
16 Xxxxxxxxxx XX 00000 Alameda The Atrium 000000 Xxxxxx Xxxx
00 Xxxxxx XX 00000 Denver The Qwest Building 324645 Square Feet
18 Xxxxxxxx Xxxx XX 00000 Oklahoma The Tower 000000 Xxxxxx Xxxx
00 Xxxxxx XX 00000 Baltimore The Shops at Kenilworth 000000 Xxxxxx Xxxx
00 Xxxxxxxxx XX 00000 Polk The Ridge MHP 000 Xxxx
00 Xxxxx XX 00000 Xxxxxx Xxxxxx on Xxxxxxx Apartments 000 Xxxxx
00 Xxx Xxxxxxx XX 00000 Los Angeles Avco Center 168913 Square Feet
23 Xxxxxxxxx XX 00000 Kalamazoo LXP-XXXX - Kalamazoo 000000 Xxxxxx Xxxx
00 Xxxxxxx XX 00000 Xxxxxx LXP-Transocean 000000 Xxxxxx Xxxx
00 Xxxx Xxxxxx XX 00000 Los Angeles Heritage Park Apartments 188 Units
26 Various CA Various Various Extra Space Storage Portfolio 3722 Units
26.1 Xxxx Xxxxxx XX 00000 Ventura Extra Space Storage - Simi Valley 687 Units
26.2 Xxxxxxxxx XX 00000 Los Angeles Extra Space Storage - Hollywood 000 Xxxxx
00.0 Xxxxxxxx Xxxx XX 00000 Ventura Extra Space Storage - Thousand Oaks 446 Units
26.4 Xx Xxxxx XX 00000 Los Angeles Extra Space Storage - La Verne 611 Units
26.5 Xxxxxx XX 00000 Los Angeles Extra Space Storage - Walnut 000 Xxxxx
00.0 Xxxxxx Xxxx XX 00000 Los Angeles Extra Space Storage - Studio City 377 Units
26.7 Xxxxxxx Xxxx XX 00000 Ventura Extra Space Storage - Newbury Park 405 Units
27 Irving TX 75063 Xxxxxx Xxxxxxxx Stores Headquarters 216772 Square Feet
28 Xxxxxxx XX 00000 Maricopa San Marina Apartments 399 Units
29 Xxxxxxxxx Xxxxxxx XX 00000 Arapahoe Centrum Buildings 177818 Square Feet
30 Xxx Xxxx XX 00000 New York 0000 Xxxxx Xxxxxx, XX, XX 00000 Square Feet
31 Xxxxxxxxxxx XX 00000 Hartford LXP-Hartford Fire Insurance Company 000000 Xxxxxx Xxxx
00 Xxxxxxxx XX 00000 Riverside Vail Ranch Plaza 101784 Square Feet
33 Xxxxxxxxx XX 00000 Tarrant Grapevine Crossing 000000 Xxxxxx Xxxx
00 Xxxxxxxx XX 00000 Xxxxxx 000 Xxxxxxxxxxx Xxxxxxx 000000 Xxxxxx Xxxx
00 Xxxxxxx XX 00000 Xxxxx Xxxxxx Xxxx- Xxxxxxx, XX 000000 Square Feet
36 Xxx Xxxxx XX 00000 Xxxxx Xxxxxxxxx Xxxxxx Building 131707 Square Feet
37 Novi MI 48377 Oakland Xxxxx Tech Center 108001 Square Feet
38 Xxxxxxxxx XX 00000 Nassau 0000 Xxxxxxxx Xxxxxxxxx 00000 Xxxxxx Feet
39 Xxxxxxx XX 00000 Xxxxxx Bear Creek Shopping Center 00000 Xxxxxx Xxxx
00 Xxxxx Xxxx XX 00000 Orange Fullerton Court 000 Xxxxx
00 Xxxxxxxx XX 00000 Forsyth LXP-Kraft Foods/ Xxxxxx Xxxxx 87219 Square Feet
42 Xxxxxxxx XX 00000 Xxxxxxxxxx Xxxxxxx Village Offices 00000 Xxxxxx Xxxx
00 Xxxx Xxxxxx XX 00000 Riverside El Paseo Collection 00000 Xxxxxx Xxxx
00 Xxxxxxxxx XX 00000 Anchorage Manoog's Isle MHC 366 Pads
45 Xxxxxxxxx XX 00000 Xxxxxx Xxxxxxxxx Circle Shopping Center 00000 Xxxxxx Xxxx
00 Xxxxxxx Xxxxx XX 00000 Queens Eastern American Trio Building 00000 Xxxxxx Xxxx
00 Xxxxx XX 00000 Hillsborough One Presidents Plaza 00000 Xxxxxx Xxxx
00 Xxxx Xxxx XX 00000 Sacramento The Crest at Fair Oaks 76 Xxxxx
00 Xxxxxxxxxxxxxxx XX 00000 Albemarle Riverside Center 000000 Xxxxxx Xxxx
00 Xxxxxxxxxx XX 00000 Dauphin LXP-AT&T (PA) 00000 Xxxxxx Xxxx
00 Xxx Xxxxxxx XX 00000 Orleans Chateau LeMoyne 000 Xxxxx
00 Xx. Xxxxx XX 00000 Xxx LXP-Gartner 00000 Xxxxxx Xxxx
00 Xxxxxxxx XX 00000 Boulder The Crossing at Clover Basin 00000 Xxxxxx Xxxx
00 Xxxxx Xxxxx XX 00000 Brevard Inland Cornerstone Plaza 68577 Square Feet
55 Xxxxx XX 00000 Hillsborough Xxxxxxx Center 00000 Xxxxxx Xxxx
00 Xxxxxxx XX 00000 Los Angeles Shadow Hills 95 Xxxxx
00 Xxxxxxxxx XX 00000 Xxxx LXP-Alstom Power Office Building 83520 Square Feet
58 Holt MI 48842 Xxxxxx Aspen Lakes Apartments 85 Units
59 Xxx Xxxxxx XX 00000 San Diego International Self Storage 0000 Xxxxx
00 Xxxxx Xxxxx XX 00000 Santa Xxxxxxx Town Center West 00000 Xxxxxx Xxxx
00 Xx Xxxxxx XX 00000 Xxxxxxxx Northgate Shopping Center 155900 Square Feet
62 Erie PA 16506 Erie The Village on Pacific 100 Xxxxx
00 Xxxxxxx XX 00000 Xxxxx Xxxxxxxxxx Townhomes 000 Xxxxx
00 Xxxxxxx XX 00000 Xxxxxx The Residences at Westchase 000 Xxxxx
00 Xxxxxxxxx XX 00000 Xxxxx Xxxxxxxx Xxxxxxx Xxxxxxxxxx 000 Xxxxx
00 Xxxxxxx XX 00000 Genesee Davison 00000 Xxxxxx Xxxx
00 Xxxxxxxxx XX 00000 Xxxxx Sunset and Henderson 00000 Xxxxxx Xxxx
00 Xxxxx XX 00000 Xxxxx-Xxxx Xxxxx Xxxxx XX 00000 Square Feet
69 Xxxxx XX 00000 Xxx Xxxx Village 000000 Xxxxxx Xxxx
00 Xxxxxxxx XX 00000 Polk Angler's Cove MHC 340 Pads
71 Deland FL 32724 Volusia Xxxxxxxxx Xxxxxxx XXX 000 Xxxx
00 Xxxxxxxxx XX 00000 Providence Boulevard Plaza 108879 Square Feet
73 Fairfax VA 22030 Fairfax City Fairfax Building 00000 Xxxxxx Xxxx
00 Xxxxxx XX 00000 Oklahoma University Village Shopping Center 00000 Xxxxxx Xxxx
00 Xxxxxxxx Xxxx XX 00000 Cleveland Xxxx Xxxx Xxxxxxxxxx 000 Xxxxx
00 Xxxxxxxx XX 00000 Hennepin Plymouth Office Center 138368 Square Feet
77 Xxxxxxxxxx XX 00000 Xxxxxx Maineville Crossing 00000 Xxxxxx Xxxx
00 Xxxx Xxxx XX 00000 Xxxx Xxxx Xxxx Xxxxxx 00000 Square Feet
79 Xxxxxxxxx XX 00000 Los Angeles Hampton Pointe 91 Xxxxx
00 Xxxxxxxxx XX 00000 New Haven Nottingham Terrace 165 Units
00 Xxxxxx Xxxxx XX 00000 Xxxx 0000 Xxxxxxxx Xx 00000 Xxxxxx Xxxx
00 Xxxxxxxx XX 00000 San Bernardino Hesperia Regency 000 Xxxxx
00 Xxxxxxx XX 00000 Dane Soverign Apartments 000 Xxxxx
00 Xxxxxxxxxx XX 00000 Xxxxxxx Regency Apartments 000 Xxxxx
00 Xxxxxx Xxxxx XX 00000 Horry Prime Sport Complex 00000 Xxxxxx Xxxx
00 Xxx Xxxxx XX 00000 and Xxxxx Palm Grove MHP and Silverado MHP 651 Pads
89115
87 Xxxxxxxxxxx XX 00000 Xxxxxx Sugarcreek Crossing 00000 Xxxxxx Xxxx
00 Xxxxxxx XX 00000 Maricopa Xxxxxxx Xxxxx XXX 000 Xxxx
00 Xxxxxxxxx XX 00000 Fairfield 000 Xxxx Xxxxx Xxxxxxxxx 86890 Square Feet
90 Xxxxxxx XX 00000 Maricopa Xxxxx Xxxxx Xxxxxxxxxx 000 Xxxxx
00 Xxxxxxx XX 00000 New Haven 260-280 Quarry Rd. 00000 Xxxxxx Xxxx
00 Xxxxxxxxxx XX 00000 Schoharie Price Chopper Plaza 110932 Square Feet
93 Xxxxxxxxxx XX 00000 DuPage Inland Wickes Furniture 00000 Xxxxxx Xxxx
00 Xxxxxxxxxx XX 00000 Jefferson Stor-All - Xxxx Xxxxxx 674 Units
95 Various NC Various Xxxxxxxxxxx Xxxxxxxxx Industrial Portfolio 00000 Xxxxxx Xxxx
00.0 Xxxxxxxxx XX 00000 Mecklenburg 520 and 000 Xxxxxxxx Xxxxx Xxxxx 73000 Square Feet
95.2 Xxxxxxxxx XX 00000 Mecklenburg 10401 Xxxx Xxxxx Road 00000 Xxxxxx Xxxx
00 Xxxxxxx XX 00000 Houston Sandia East Apartments 120 Units
97 Elk Grove CA 95758 Sacramento Laguna Palms Shopping Center 00000 Xxxxxx Xxxx
00 Xxxxxxxxx XX 00000 Fairfield 000 Xxxx Xxxxx Xxxxxxxxx 00000 Xxxxxx Xxxx
00 Xxxxxxx XX 00000 Xxxx 000-000 Xxxxx Xxxxx 25329 Square Feet
100 Columbus IN 47201 Xxxxxxxxxxx Park View Townhomes 000 Xxxxx
000 Xxxxxxxxxx XX 00000 Jefferson Stor-All - LaGrange 000 Xxxxx
000 Xxx Xxxxxxxxx XX 00000 San Francisco The Inverness Apartments 34 Xxxxx
000 Xxxxx XX 00000 Terrebonne Houma Plaza 00000 Xxxxxx Xxxx
000 Xxxxxx XX 00000 Santa Xxxxxxx Acorn Plaza Center 30530 Square Feet
105 Xxxxxxx-Xxxxx XX 00000 Forsyth Walgreens - Xxxxxxx-Xxxxx, XX 00000 Square Feet
000 Xxx Xxxxxxxxx XX 00000 Xxx Xxxxxxxxx Lakeside Medical Xxxxxx 00000 Xxxxxx Xxxx
000 Xxxxxxx XX 00000 Sedgewick Westlink Shopping Center 97359 Square Feet
108 Guymon OK 73942 Texas Apache Trace Apartments 144 Units
109 King of Prussia PA 19406 Xxxxxxxxxx Courtside Square Apartments 73 Units
110 Ontario CA 91764 San Bernardino Diamond Pointe 38 Units
111 League City TX 77573 Galveston Centre at South Shore Harbour II 00000 Xxxxxx Xxxx
000 Xxxxx Xxxxx XX 00000 Santa Xxxxxxx Pep Boys / Smart & Final Center 53944 Square Feet
000 Xxxxxx Xxxxx XX 00000 Burnet Xxxxxxxxx-Xxxxxx Xxxxx, XX 00000 Square Feet
114 Xxxxxxxx XX 00000 Xxxxx Xxxxxxxx Xxxxx Xxxxxxxxxx 000 Xxxxx
000 Xxxxxxxx XX 00000 Pinal Walgreens-Maricopa (AZ) 00000 Xxxxxx Xxxx
000 Xxxxx XX 00000 Canyon Midtowne Spectrum Retail Shops 00000 Xxxxxx Xxxx
000 Xxxxxxxxx XX 00000 Xxxxxxxxxx Carriage House Apartments 145 Units
000 Xxxxxxx Xxxxxx XX 00000 Dallas Venture Tech 000000 Xxxxxx Xxxx
000 Xxxxxxxxxx XX 00000 Jefferson Stor-All - Middletown 507 Units
120 Houston TX 77084 Xxxxxx Stonegate Shopping Center 00000 Xxxxxx Xxxx
000 Xxxxxxxx XX 00000 Xxxxxx Xxxxxx Landings 000 Xxxxx
000 Xxxxxxx XX 00000 and San Bernardino Rosepointe Euclid 36 Units
91762
123 Xxxx Xxxxxx XX 00000 Riverside Escada-El Paseo 0000 Xxxxxx Xxxx
000 Xxxx XX 00000 Maricopa Fry's Superstition Springs Center 10981 Square Feet
125 Xxxxxxxx XX 00000 Mesa Redlands Marketplace 00000 Xxxxxx Xxxx
000 Xxx Xxxxxxx XX 00000 Bexar Shavano Square 00000 Xxxxxx Xxxx
000 Xxxxxxx XX 00000 Oklahoma Xxxx Oaks 00000 Xxxxxx Xxxx
000 Xxxxxxx XX 00000 Xxxxxxx Hilltop Village Apartments 000 Xxxxx
000 Xxxxx Xxx Xxxxx XX 00000 Xxxxx Xxxxxxxxxx Industrial Park 00000 Xxxxxx Xxxx
000 Xxxx Xxxxxx XX 00000 Pinellas Tarpon Lakeview 000 Xxxx
000 Xxxxxx Xxxxxx XX 00000 San Xxxx Obispo Xxxxxx Town & Country Square 00000 Xxxxxx Xxxx
000 Xxxxxxxx XX 00000 Seminole Baywood Center 00000 Xxxxxx Xxxx
000 Xxxxxxxx XX 00000 Victoria 0000 Xxxxxxxxxxx Xxxx 00000 Xxxxxx Xxxx
000 Xxxxxxx XX 00000 Greenville Xxxx Xxxxxxx Self Storage 000 Xxxxx
000 Xxxxxxx XX 00000 Dane Rolling Xxxxxxx Shopping Center 00000 Xxxxxx Xxxx
000 Xxxxxxx Xxxx XX 00000 San Mateo Redwood Apartments 33 Xxxxx
000 Xxxxxxxxx XX 00000 Mecklenburg Landings at Xxxxxx Creek 72 Xxxxx
000 Xxxxxxxxxxxx XX 00000 Franklin Stor-All - Reynoldsburg 000 Xxxxx
000 Xxxxxxxx XX 00000 Honolulu 000 Xxxxxxxx Xxxxxx 00000 Xxxxxx Xxxx
000 Xxxxxxx XX 00000 Queens Laurelton Medical Center 14000 Square Feet
141 Xxxxxx XX 00000 Denver 300 Alameda Retail 00000 Xxxxxx Xxxx
000 Xxxxx XX 00000 Miami-Dade Miami Gardens Office Center 00000 Xxxxxx Xxxx
000 Xxxxxxx XX 00000 Riverside Windrush 50 Xxxxx
000 Xxxxxxx XX 00000 Xxxx Ashland-Wellington Shopping Plaza 00000 Xxxxxx Xxxx
000 Xxxxxxxxx XX 00000 Riverside Research Xxxx Xxxxx Xxxxxxxxx 00000 Square Feet
000 Xxx Xxxxxx XX 00000 Xxxx Xxxxxx Club Apartments 77 Units
147 Encino CA 91316 Los Angeles Bar Triple R Shopping Center 00000 Xxxxxx Xxxx
000 Xxxxxxxxxx XX 00000 Oakland Mondial Building 10380 Square Feet
000 Xxx Xxxx XX 00000 Xxxxx Xxxxx Hillsdale Self Storage 000 Xxxxx
000 Xxxxxxxxx XX 00000 Xxxxxxx Xxxxxxx Gate Business Center 00000 Xxxxxx Xxxx
000 Xxxxxx XX 00000 Monroe Unionville Station 40 Units
152 Corona CA 92882 Riverside Corona Covenant Group 00000 Xxxxxx Xxxx
000 Xxxxxxx XX 00000 Dane Evergreen Office Building 36220 Square Feet
154 Hamburg NY 14075 Erie Hamburg Self Storage 586 Units
155 Baton Rouge LA 70809 East Baton Rouge Jefferson Village 00000 Xxxxxx Xxxx
000 Xxxxxxxxx XX 00000 Fayette Stor-All Palumbo 000 Xxxxx
000 Xx. Xxxxxxx XX 00000 Xxxx LaSalle Bank - St. Xxxxxxx, IL 5952 Square Feet
158 Xxxxxxxxxx XX 00000 Los Angeles Xxx Xxxxxx 00 Xxxxx
000 Xxxxxxxxxxx XX 00000 Monroe All American Storage - South 612 Units
000 Xxxxxxxx XX 00000 Seminole ProMed Center 00000 Xxxxxx Xxxx
000 Xxxxxxx XX 00000 Orange Brandywood Apartments 88 Units
162 Denver CO 80223 Denver Jake Industrial Portfolio 00000 Xxxxxx Xxxx
000 Xxxx Xxxxxxx XX 00000 Larimer A-1 U Stor-It 449 Units
164 Lawton OK 73505 Comanche Xxxxxx Self Storage Portfolio 649 Units
164.1 Xxxxxx XX 00000 Comanche Xxxxxx Self Storage 268 Units
164.2 Xxxxxx XX 00000 Comanche Meadowbrook Self Storage 225 Units
164.3 Xxxxxx XX 00000 Comanche Great Plains Self Storage 156 Xxxxx
000 Xxxxx XX 00000 Pitkin Godiva Building 5464 Square Feet
000 Xxx Xxxxx Xxxxxxx XX 00000 Xxxx Strawberry Hill of Elk Grove Village 00000 Xxxxxx Xxxx
000 Xxxxxxxx XX 00000 Franklin Stor-All - Whitehall 639 Units
168 Bloomington IN 47408 Monroe All American Storage - East 480 Units
169 Columbus GA 31904 Muscogee XXX-Xxxxxxxx, XX 00000 Square Feet
170 Xxxxxxxx XX 00000 Franklin Stor-All W. Fifth 467 Units
000 Xxxx Xxxxx XX 00000 Xxx Xxxxxxx Rose Pointe 32 Units
172 Xxxxxxx XX 00000 Maricopa Sunshine Terrace 74 Xxxxx
000 Xxxxxxx XX 00000 Fairfield 000 Xxxx Xxxxxx 00000 Xxxxxx Xxxx
000 Xxxxxxx XX 00000 Calcasieu Sulphur Plaza 00000 Xxxxxx Xxxx
000 Xxxxxxx XX 00000 Xxxxxx Midtown Crossing 00000 Xxxxxx Xxxx
000 Xxx Xxxxxx XX 00000 Island Oak Hollow Mobile Home Park 88 Pads
177 Xxxxxxxxxxxx XX 00000 Cumberland Tamarind Place Apartments 57 Xxxxx
000 Xxxxxxx XX 00000 Xxxxxx Four Seasons Business Park 00000 Xxxxxx Xxxx
000 Xxxxxxx XX 00000 San Xxxxxxxxxx Xxxxxxx Townhomes 28 Xxxxx
000 Xxxxxx Xxxxxxx XX 00000 Los Angeles Xxxxxxx Xxxxxx 00 Xxxxx
000 Xxxx XX 00000 Maricopa Palo Verde Mini Storage 620 Units
182 Santee CA 00000 Xxx Xxxxx Xxxx xx Xxxxxxx-Xxxxxx XX 00000 Square Feet
000 Xxxxxxxxx XX 00000 Xxx Xxxxxxx The Chadron 00000 Xxxxxx Xxxx
000 Xxxxxxxx XX 00000 Los Angeles Summer Winds 34 Xxxxx
000 Xxxxxxxx XX 00000 Houston Xxxxxxxx Plaza 00000 Xxxxxx Xxxx
000 Xxxxxxxxx XX 00000 San Xxxxxxxxxx Xxxxxx Industrial Park 00000 Xxxxxx Xxxx
000 Xxxxx Xxxxxxxxx XX 00000 Los Angeles Casa Laurel 23 Xxxxx
000 Xxx Xxx XX 00000 Val Verde Del Rio Plaza 16857 Square Feet
189 Reseda CA 91335 Los Angeles The Park 35 Xxxxx
000 Xxxxxxxx XX 00000 Brazoria Country Place Shopping Center 00000 Xxxxxx Xxxx
000 Xxx Xxxxxxx XX 00000 Los Angeles Xxxx Terrace 24 Xxxxx
000 Xxxxx Xxxx XX 00000 Queens 000-00 Xxxxxxxx Xxxx. 46160 Square Feet
000 Xxxxxxxxxx XX 00000 Madison Xxxxxx MHP 000 Xxxx
000 Xxxxxxxxxx XX 00000 Chesapeake City Greenbriar Village Shops 00000 Xxxxxx Xxxx
000 Xxxxxxxxxx XX 00000 Xxxxxxx Xxxxxx Xxxxxxx Xxxxxxxxxx 00 Xxxxx
000 Xxxxxx XX 00000 Xxxxxxxx Oak Forest Apartments 64 Units
000 Xxxxx Xxxx XX 00000 Orange Bristol Street Retail 0000 Xxxxxx Xxxx
000 Xxx Xxxxxxx XX 00000 Los Angeles Leeward Apartments 24 Xxxxx
000 Xxxxxxxxxx XX 00000 Charleston 0000 Xxx Xxxxxxxxxx Xxxxxxxxx 9390 Square Feet
000 Xxxxx Xxxxxxxxx XX 00000 Xxx Xxxxxxx Camellia Apartment 20 Units
201 Xxxxxxx XX 00000 King Northwest Dental Xxxxxx 0000 Xxxxxx Xxxx
000 Xxxxxx Xxxx XX 00000 Xxxxxxx Pebblebrook Apartments 34 Units
203 Van Nuys CA 91406 Los Angeles Casa Xxxx 37 Xxxxx
000 Xxxx XX 00000 McLennan Brookhollow 000 Xxxxx
000 Xxx Xxxxxxx XX 00000 Los Angeles Twin Palms 19 Xxxxx
000 Xxx Xxxxxxx XX 00000 Bexar Regency Manor 00 Xxxxx
000 Xxxxxxxxxx XX 00000 Greenville Xxxxx Mountain Self-Storage 000 Xxxxx
000 Xxxxxxxx XX 00000 Los Angeles 000-000 X. Xxxxxx Xxxxxx 7619 Square Feet
209 Indianapolis IN 46254 Xxxxxx Charter, Starbucks & Wireless Toyz 0000 Xxxxxx Xxxx
000 Xxxxxxxxxxx XX 00000 Spartanburg Add A Space 000 Xxxxx
000 Xxxxxxx Xxxxx XX 00000 Washington Cottage Grove Marketplace 00000 Xxxxxx Xxxx
000 Xxxxx Xxxxx XX 00000 Los Angeles Rose Terrace 32 Xxxxx
000 Xxxxxxxx XX 00000 Salt Lake Empire Storage 242 Xxxxx
000 Xxxxxxx XX 00000 Xxxxxxx Xxxxxxxxx Xxxxx 00000 Square Feet
000 Xxxxx Xxxxx XX 00000 Xxx Xxxxxxx Xxx Xxxxxx Xxxxxxxxxx 00 Xxxxx
000 Xxxxxxxx XX 00000 Los Angeles Iron Mountain 24 Xxxxx
000 Xxxxxxx XX 00000 DeKalb Xxxxx Xxxxxx Xxxxxx 00000 Xxxxxx Xxxx
000 Xxxxxxxxxxxx XX 00000 Cuyahoga The Xxxxx Building 00000 Xxxxxx Xxxx
000 Xxxxxxxxxx XX 00000 Lincoln Lincoln Self Storage 000 Xxxxx
000 Xxxxxxxxx XX 00000 Brevard Crossroads Plaza 0000 Xxxxxx Xxxx
000 Xxxxxx Xxxxxx XX 00000 Houston Xxxxxx Ridge Apartments 40 Units
000 XxXxxxxxx XX 00000 XxXxxxxxx Xxxxxx Ambassador Xxxxxxx Plaza 0000 Xxxxxx Xxxx
000 Xxxxxxx XX 00000 Catawba Twin Cedars 36 Xxxxx
000 Xxxxxxx Xxxxxxx XX 00000 Xxxx Strawberry Hill Plaza of 20725 Square Feet
Xxxxxxx Estates
225 Los Angeles CA 90026 Los Angeles Xxxxxxx Terrace 13 Units
226 Xxxxxx XX 00000 Denver Alameda Tejon Retail 7240 Square Feet
000 Xxxxxxxx XX 00000 Xxxxxxx XXX XX Plaza 00000 Xxxxxx Xxxx
000 Xxxxx Xxxxxxxxx XX 00000 Los Angeles Shadow Brook 20 Units
229 Bedford Heights OH 44146 Cuyahoga Xxxxx Xxxxxx MHC 00 Xxxx
000 Xxxxxxxxx XX 00000 Xxxxxx Hermitage MHCs 000 Xxxx
000 Xxxxx Xxxxxxxx XX 00000 Xxxxxxxx Xxxxxxxx Xxxx Xxxxx 00000 Square Feet
000 Xxxxxxx Xxxx XX 00000 Xxxxxxxxxx Xxxxxx Xxxxxx Townhomes 19 Units
Net
Mortgage
Interest Interest Original Cutoff Rem. Maturity/ARD Amort.
Loan # Rate (%) Rate Balance Balance Term Term Date Term
------ -------- ---- ------- ------- ---- ---- ---- ----
1 00005 4.9004 175,000,000 174,810,583 84 83 07/01/12 360
2 00005 4.7039 100,000,000 100,000,000 120 119 07/01/15 0
2.1 00005 4.7039 36,988,111 36,988,111 120 119 07/01/15 0
2.2 00005 4.7039 34,478,203 34,478,203 120 119 07/01/15 0
2.3 00005 4.7039 28,533,686 28,533,686 120 119 07/01/15 0
3 00005 4.9059 80,000,000 80,000,000 120 120 08/01/15 300
4 00005 5.1789 65,000,000 64,858,541 84 82 06/01/12 360
5 00005 4.9589 63,000,000 63,000,000 60 59 07/01/10 0
6 00005 5.2789 45,000,000 45,000,000 120 120 08/01/15 360
7 00006 5.5689 44,000,000 44,000,000 120 119 07/11/15 360
8 00005 5.0739 42,125,000 42,125,000 120 119 07/01/15 360
9 00005 5.18923 40,920,690 40,920,690 96 93 05/01/13 360
10 00005 5.3089 37,500,000 37,500,000 120 119 07/01/15 0
11 00005 5.1489 35,400,000 35,400,000 120 118 06/01/15 360
12 00004 4.4289 32,670,000 32,670,000 60 59 07/11/10 0
13 00005 5.0989 30,800,000 30,800,000 120 119 07/11/15 360
14 00005 5.1389 29,600,000 29,600,000 120 119 07/11/15 360
15 00005 5.3589 28,400,000 28,400,000 120 118 06/05/15 360
16 00005 5.3989 27,400,000 27,400,000 120 120 08/01/15 360
17 00006 5.5389 26,000,000 26,000,000 60 60 08/01/10 0
18 00005 5.1289 23,000,000 22,976,413 120 119 07/01/15 360
19 00005 5.0789 22,500,000 22,500,000 120 119 07/01/15 360
20 00005 5.1289 21,400,000 21,400,000 60 59 07/11/10 0
21 00005 4.8489 21,200,000 21,200,000 60 58 06/11/10 0
22 00005 5.0689 20,000,000 20,000,000 120 118 06/11/15 0
23 00005 5.3749 17,625,000 17,625,000 120 117 05/01/15 360
24 00005 5.120055 16,976,914 16,976,914 120 117 05/01/15 360
25 00005 5.1289 17,000,000 16,963,081 120 118 06/06/15 360
26 00005 4.5689 16,650,000 16,650,000 60 59 07/01/10 0
26.1 00005 4.5689 3,191,693 3,191,693 60 59 07/01/10 0
26.2 00005 4.5689 2,777,955 2,777,955 60 59 07/01/10 0
26.3 00005 4.5689 2,423,323 2,423,323 60 59 07/01/10 0
26.4 00005 4.5689 2,337,620 2,337,620 60 59 07/01/10 0
26.5 00005 4.5689 2,127,796 2,127,796 60 59 07/01/10 0
26.6 00005 4.5689 2,077,556 2,077,556 60 59 07/01/10 0
26.7 00005 4.5689 1,714,058 1,714,058 60 59 07/01/10 0
27 00006 5.6689 16,000,000 16,000,000 120 120 08/01/15 360
28 00005 4.9789 15,200,000 15,165,934 120 118 06/06/15 360
29 00005 5.3589 14,600,000 14,600,000 120 119 07/11/15 360
30 00005 5.1289 14,250,000 14,250,000 120 120 08/01/15 360
31 00005 4.97407 13,780,000 13,780,000 96 93 05/01/13 360
32 00005 4.5389 13,488,798 13,488,798 60 58 06/11/10 0
33 00005 4.5689 12,815,000 12,815,000 60 58 06/11/10 0
34 00005 5.0389 12,800,000 12,800,000 120 120 08/01/15 360
35 00005 5.3536 12,250,000 12,250,000 120 120 08/01/15 360
36 00005 5.2122 12,000,000 12,000,000 120 120 08/01/15 360
37 00005 5.1389 11,950,000 11,950,000 120 120 08/01/15 360
38 00006 5.6389 11,525,000 11,525,000 120 120 09/01/15 360
39 00005 4.9789 11,449,749 11,449,749 60 58 06/11/10 0
40 00005 5.2389 11,334,150 11,334,150 120 120 08/11/15 360
41 00005 5.21194 11,325,000 11,325,000 120 117 05/01/15 360
42 00005 5.1289 11,300,000 11,300,000 120 117 05/01/15 360
43 00005 5.4089 11,000,000 11,000,000 120 120 08/01/15 360
44 00005 5.2589 10,900,000 10,900,000 120 118 06/11/15 360
45 00005 5.0389 10,000,000 9,989,523 120 119 07/01/15 360
46 00005 5.3389 9,800,000 9,790,586 120 119 07/11/15 360
47 00005 5.3489 9,600,000 9,600,000 120 119 07/01/15 360
48 00005 5.0289 9,400,000 9,400,000 120 120 08/11/15 360
49 00006 5.5289 9,375,000 9,356,066 120 118 06/11/15 360
50 00005 5.0599 9,179,800 9,179,800 120 117 05/01/15 360
51 00005 4.8989 9,000,000 8,990,255 120 119 07/01/15 360
52 00005 5.2189 8,912,283 8,912,283 96 93 05/01/13 360
53 00005 5.1589 8,590,000 8,562,403 120 117 05/11/15 360
54 00005 4.8089 8,400,000 8,400,000 60 58 06/01/10 0
55 00005 5.3489 8,400,000 8,400,000 120 119 07/01/15 360
56 00005 5.2389 8,088,640 8,088,640 120 120 08/11/15 360
57 00005 5.2559 7,800,000 7,800,000 120 117 05/01/15 360
58 00005 4.9089 7,500,000 7,500,000 120 120 08/01/15 360
59 00005 5.4289 7,500,000 7,477,539 120 118 06/01/15 300
60 00005 5.2789 7,300,000 7,300,000 120 119 07/11/15 360
61 00005 4.9789 7,250,000 7,250,000 120 120 08/01/15 300
62 00005 5.1489 7,200,000 7,200,000 120 118 06/01/15 360
63 00005 5.4089 6,880,000 6,880,000 120 118 06/01/15 360
64 00005 4.9289 6,750,000 6,750,000 120 119 07/01/15 360
65 00005 5.2489 6,700,000 6,700,000 120 120 08/01/15 360
66 00006 5.5089 6,675,859 6,675,859 116 116 04/01/15 355
67 00006 5.5789 6,600,000 6,594,028 120 119 07/11/15 360
68 00006 6.2689 6,550,000 6,533,020 120 118 06/01/15 300
69 00005 5.0289 6,500,000 6,493,174 120 119 07/01/15 360
70 00005 5.0289 6,445,000 6,445,000 120 120 08/11/15 360
71 00005 5.1789 6,400,000 6,400,000 60 59 07/11/10 0
72 00005 4.7589 6,300,000 6,300,000 60 58 06/11/10 0
73 00005 4.9089 6,200,000 6,200,000 120 120 08/01/15 360
74 00005 5.3389 6,200,000 6,200,000 120 120 09/01/15 360
75 00006 5.5589 6,200,000 6,200,000 120 118 06/01/15 324
76 00005 5.4189 6,200,000 6,200,000 120 118 06/01/15 0
77 00005 5.1289 6,100,000 6,100,000 120 120 08/01/15 360
78 00005 4.9789 6,047,500 6,047,500 60 59 07/11/10 0
79 00005 5.2389 6,000,520 6,000,520 120 120 08/11/15 360
80 00005 5.2589 6,000,000 6,000,000 120 120 08/01/15 360
81 00005 5.2689 6,000,000 5,994,123 120 119 07/01/15 360
82 00005 5.2389 5,960,000 5,960,000 120 120 08/11/15 360
83 00005 5.0239 5,940,000 5,940,000 120 119 07/01/15 360
84 00006 6.3039 5,850,000 5,835,565 60 57 05/01/10 360
85 00005 5.0889 5,800,000 5,800,000 120 120 08/01/15 360
86 00005 4.9789 5,750,000 5,736,951 120 118 06/11/15 360
87 00006 5.5089 5,700,000 5,700,000 120 120 08/11/15 360
88 00005 4.9689 5,450,000 5,450,000 84 84 08/01/12 360
89 00005 5.2289 5,200,000 5,200,000 120 118 06/01/15 360
90 00005 5.1289 5,100,000 5,100,000 120 118 06/11/15 360
91 00005 5.3189 5,000,000 5,000,000 120 119 07/01/15 360
92 00005 5.1889 5,000,000 5,000,000 120 120 08/01/15 360
93 00005 4.9989 4,964,000 4,964,000 60 59 07/01/10 0
94 00005 5.1599 4,900,000 4,895,048 120 119 07/01/15 360
95 00005 5.3589 4,880,000 4,880,000 120 118 06/01/15 360
95.1 00005 5.3589 3,920,000 3,920,000 120 118
95.2 00005 5.3589 960,000 960,000 120 118
96 00005 5.2789 4,800,000 4,800,000 120 119 07/01/15 360
97 00005 5.1789 4,725,000 4,725,000 120 120 08/01/15 360
98 00005 5.2289 4,500,000 4,500,000 120 118 06/01/15 360
99 00006 5.6789 4,500,000 4,491,203 120 118 06/01/15 360
100 00005 4.8789 4,458,000 4,447,799 120 118 06/06/15 360
101 00005 5.1599 4,438,000 4,433,515 120 119 07/01/15 360
102 00006 5.5809 4,400,000 4,400,000 120 119 07/01/15 0
103 00006 5.5439 4,250,000 4,250,000 120 119 07/01/15 360
104 00005 5.2789 4,240,000 4,240,000 120 119 07/11/15 360
105 00005 5.3189 4,200,000 4,200,000 120 120 08/01/15 360
106 00006 5.5889 4,125,000 4,121,220 120 119 07/01/15 360
107 00006 5.6089 4,100,000 4,096,262 120 119 07/11/15 360
108 00005 5.3589 4,040,000 4,031,537 120 118 06/01/15 360
109 00005 5.0089 4,000,000 4,000,000 120 120 08/01/15 360
110 00005 5.2389 3,920,000 3,920,000 120 120 08/11/15 360
111 00005 5.4489 3,900,000 3,900,000 120 118 06/11/15 360
112 00005 5.1789 3,850,000 3,850,000 120 120 08/11/15 360
113 00006 5.4889 3,850,000 3,846,428 120 119 07/01/15 360
114 00005 5.2689 3,840,000 3,840,000 120 120 08/11/15 360
115 00006 5.5789 3,808,000 3,800,392 120 118 06/01/15 360
116 00006 5.5989 3,800,000 3,800,000 120 120 08/11/15 360
117 00005 5.4189 3,800,000 3,788,601 120 118 06/01/15 300
118 00005 5.0089 3,750,000 3,750,000 120 120 08/01/15 360
119 00005 5.1599 3,740,000 3,736,220 120 119 07/01/15 360
120 00005 5.1989 3,725,000 3,725,000 120 120 08/11/15 360
121 00005 5.1989 3,720,000 3,716,293 120 119 07/01/15 360
122 00005 5.2389 3,680,000 3,680,000 120 120 08/11/15 360
123 00006 5.7989 3,650,000 3,639,734 120 118 06/01/15 300
124 00005 5.2389 3,600,000 3,600,000 120 119 07/01/15 360
125 00005 5.2989 3,600,000 3,596,456 120 119 07/11/15 360
126 00005 5.3589 3,525,000 3,521,581 120 119 07/11/15 360
127 00005 5.3189 3,500,000 3,500,000 120 120 08/01/15 360
128 00006 5.7289 3,500,000 3,468,673 120 114 02/01/15 300
129 00005 5.0889 3,450,000 3,450,000 120 120 08/01/15 360
130 00006 5.5289 3,450,000 3,443,032 120 118 06/11/15 360
131 00005 5.2789 3,360,000 3,360,000 120 119 07/11/15 360
132 00005 5.2489 3,350,000 3,350,000 120 120 08/01/15 360
133 00005 5.2589 3,350,000 3,350,000 120 119 07/11/15 360
134 00006 5.6089 3,300,000 3,300,000 120 120 08/01/15 360
135 00006 5.6489 3,300,000 3,297,022 120 119 07/01/15 360
136 00005 5.3689 3,237,000 3,237,000 120 120 08/06/15 360
137 00005 5.1989 3,240,000 3,236,772 120 119 07/01/15 360
138 00005 5.1599 3,180,000 3,176,786 120 119 07/01/15 360
139 00005 4.9789 3,150,000 3,150,000 120 120 08/11/15 360
140 00006 6.0089 3,150,000 3,144,276 120 118 06/01/15 360
141 00005 5.0789 3,125,000 3,121,757 120 119 07/11/15 360
142 00005 5.2389 3,100,000 3,093,409 120 118 06/01/15 360
143 00005 5.2389 3,080,000 3,080,000 120 120 08/11/15 360
144 00005 4.8289 3,075,000 3,075,000 60 60 08/01/10 0
145 00006 5.5989 3,020,000 3,020,000 120 120 08/11/15 360
146 00006 5.6389 3,000,000 3,000,000 84 83 07/11/12 360
147 00005 5.3889 3,000,000 2,997,111 120 119 07/01/15 360
148 00006 5.6789 2,950,000 2,947,358 120 119 07/01/15 360
149 00005 5.4289 2,900,000 2,897,235 120 119 07/01/15 360
150 00005 5.3289 2,875,000 2,875,000 120 120 08/01/15 240
151 00006 5.7219 2,855,000 2,855,000 120 119 07/01/15 300
152 00006 5.7589 2,860,000 2,854,506 120 118 06/01/15 360
153 00005 5.4289 2,860,000 2,854,098 120 118 06/01/15 360
154 00005 5.4189 2,850,000 2,847,276 120 119 07/01/15 360
155 00005 5.3789 2,800,000 2,797,297 120 119 07/01/15 360
156 00005 5.1599 2,800,000 2,797,170 120 119 07/01/15 360
157 00006 5.9889 2,775,000 2,771,465 204 203 07/01/22 300
158 00005 5.2389 2,760,000 2,760,000 120 120 08/11/15 360
159 00005 5.1889 2,750,000 2,745,923 120 119 07/01/15 300
160 00005 5.1989 2,720,000 2,720,000 120 120 08/01/15 360
161 00005 5.2989 2,700,000 2,694,271 120 118 06/11/15 360
162 00006 5.6689 2,682,000 2,682,000 120 120 08/11/15 240
163 00005 5.1989 2,650,000 2,650,000 120 120 08/05/15 360
164 00006 5.7989 2,645,000 2,642,703 120 119 07/01/15 360
164.1 00006 5.7989 1,363,644 1,362,460 120 119
164.2 00006 5.7989 752,356 751,702 120 119
164.3 00006 5.7989 529,000 528,541 120 119
165 00005 5.3889 2,600,000 2,600,000 60 59 07/11/10 360
166 00005 4.8289 2,580,000 2,580,000 60 60 08/01/10 0
167 00005 5.1599 2,580,000 2,577,393 120 119 07/01/15 360
168 00005 5.1889 2,550,000 2,546,220 120 119 07/01/15 300
169 00005 5.2989 2,540,000 2,537,500 120 119 07/01/15 360
170 00005 5.1599 2,540,000 2,537,433 120 119 07/01/15 360
171 00005 5.2389 2,530,870 2,530,870 120 120 08/11/15 360
172 00005 5.2289 2,500,000 2,500,000 120 119 07/01/15 360
173 00005 5.1589 2,500,000 2,497,454 120 119 07/11/15 360
174 00006 5.4889 2,485,000 2,485,000 120 120 08/01/15 360
175 00005 5.3289 2,475,000 2,475,000 120 119 07/01/15 360
176 00005 5.1689 2,465,000 2,465,000 120 120 08/01/15 360
177 00006 5.5289 2,400,000 2,397,768 120 119 07/01/15 360
178 00006 5.4489 2,400,000 2,395,132 120 118 06/11/15 360
179 00005 5.2389 2,359,490 2,359,490 120 120 08/11/15 360
180 00005 5.2389 2,333,470 2,333,470 120 120 08/11/15 360
181 00006 5.6989 2,300,000 2,297,997 120 119 07/01/15 360
182 00006 5.6389 2,300,000 2,293,352 120 118 06/01/15 300
183 00005 5.2689 2,250,000 2,247,769 120 119 07/01/15 360
184 00005 5.2389 2,240,000 2,240,000 120 120 08/11/15 360
185 00006 5.5439 2,230,000 2,230,000 120 119 07/01/15 360
186 00005 5.3189 2,200,000 2,188,468 120 115 03/11/15 360
187 00005 5.2389 2,146,250 2,146,250 120 120 08/11/15 360
188 00006 5.5439 2,100,000 2,100,000 120 119 07/01/15 360
189 00005 5.2389 2,080,370 2,080,370 120 120 08/11/15 360
190 00006 5.4789 2,000,000 2,000,000 120 120 08/01/15 360
191 00005 5.2389 2,000,000 2,000,000 120 120 08/11/15 360
192 00006 5.8789 2,000,001 1,995,949 120 119 07/01/15 240
193 00006 5.6889 2,005,000 1,995,314 120 115 03/01/15 360
194 00006 5.3639 2,000,000 1,991,225 120 117 05/01/15 300
195 00006 5.5289 1,940,000 1,940,000 120 119 07/01/15 360
196 00005 5.1989 1,920,000 1,920,000 120 119 07/01/15 360
197 00006 5.5589 1,900,000 1,900,000 120 120 08/01/15 300
198 00005 5.2389 1,886,280 1,886,280 120 120 08/11/15 360
199 00006 5.8589 1,850,000 1,846,608 120 118 06/01/15 360
200 00005 5.2389 1,814,530 1,814,530 120 120 08/11/15 360
201 00006 5.6489 1,800,000 1,798,375 120 119 07/01/15 360
202 00006 5.4539 1,800,000 1,794,723 120 117 05/01/15 360
203 00005 5.2389 1,785,400 1,785,400 120 120 08/11/15 360
204 00005 5.1789 1,760,000 1,758,217 120 119 07/11/15 360
205 00005 5.2389 1,750,750 1,750,750 120 120 08/11/15 360
206 00005 5.3989 1,725,000 1,722,540 120 119 07/01/15 300
207 00006 5.6089 1,700,000 1,700,000 120 120 08/01/15 360
208 00005 5.3789 1,675,000 1,675,000 120 119 07/01/15 360
209 00006 5.7989 1,620,000 1,618,593 120 119 07/01/15 360
210 00006 5.6089 1,600,000 1,600,000 120 120 08/01/15 360
211 00006 5.5389 1,600,000 1,598,515 120 119 07/01/15 360
212 00005 5.2389 1,564,970 1,564,970 120 120 08/11/15 360
213 00006 5.5189 1,540,000 1,538,564 120 119 07/01/15 360
214 00006 5.8289 1,525,000 1,525,000 120 120 08/01/15 300
215 00005 5.2389 1,507,230 1,507,230 120 120 08/11/15 360
216 00005 5.2389 1,427,790 1,427,790 120 120 08/11/15 360
217 00005 5.4189 1,400,000 1,400,000 120 120 08/01/15 120
218 00005 5.4189 1,400,000 1,398,678 120 119 07/01/15 360
219 00006 5.7589 1,368,000 1,366,178 120 119 07/01/15 300
220 00005 5.3889 1,300,000 1,298,748 120 119 07/01/15 360
221 00005 5.2589 1,290,000 1,287,240 120 118 06/01/15 360
222 00006 5.8089 1,280,000 1,271,254 180 178 06/01/20 180
223 00005 5.3489 1,260,000 1,258,790 120 119 07/01/15 360
224 00005 4.8289 1,240,000 1,240,000 60 60 08/01/10 0
225 00005 5.2389 1,232,000 1,232,000 120 120 08/11/15 360
226 00006 5.6889 1,211,560 1,210,324 120 119 07/01/15 341
227 00006 5.4139 1,200,000 1,196,466 120 118 06/01/15 300
228 00005 5.2389 1,193,830 1,193,830 120 120 08/11/15 360
229 00005 5.2789 1,130,000 1,128,882 120 119 07/01/15 360
230 00006 5.5789 1,100,000 1,098,484 120 119 07/11/15 300
231 00006 5.4589 1,060,000 1,060,000 120 120 08/01/15 360
232 00006 5.8489 1,000,000 998,117 120 118 06/01/15 360
Monthly Servicing
Rem. Debt Fee ARD
Loan # Amort. Service Rate Accrual Type (Y/N) ARD Step Up (%)
------ ------ ------- ---- ------------ ----- ---------------
1 359 931,060 0.0211 Actual/360 No
2 0 399,219 0.0211 Actual/360 No
2.1 0 399,219 0.0211 Actual/360 No
2.2 0 399,219 0.0211 Actual/360 No
2.3 0 399,219 0.0211 Actual/360 No
3 300 464,276 0.0211 Actual/360 No
4 358 356,922 0.0211 Actual/360 No
5 0 264,549 0.0111 Actual/360 No
6 360 251,286 0.0711 Actual/360 No
7 360 252,317 0.0211 Actual/360 No
8 360 228,588 0.0211 Actual/360 Yes The greater of (i) the Initial Interest Rate plus 2.5%
(ii) the Treasury Constant Maturity Yield Index plus
2.5%. Each would increase by 0.25% per annum on each
anniversary of the optional prepayment date.
9 360 225,155 0.02877 Actual/360 No
10 0 168,876 0.0211 Actual/360 No
11 360 193,730 0.0211 Actual/360 No
12 0 121,151 0.0211 30/360 No
13 360 167,607 0.0211 Actual/360 No
14 360 161,806 0.0211 Actual/360 No
15 360 159,475 0.0411 Actual/360 No
16 360 154,202 0.0211 Actual/360 No
17 0 122,140 0.0211 Actual/360 No
18 359 125,586 0.0211 Actual/360 No
19 360 122,164 0.0211 Actual/360 No
20 0 93,117 0.0211 Actual/360 No
21 0 87,232 0.0211 Actual/360 No
22 0 86,688 0.0611 Actual/360 No
23 360 99,091 0.0361 Actual/360 No
24 360 92,803 0.039945 Actual/360 No
25 358 93,454 0.0811 Actual/360 No
26 0 64,571 0.0211 Actual/360 No
26.1 0 12,378 0.0211 Actual/360 No
26.2 0 10,773 0.0211 Actual/360 No
26.3 0 9,398 0.0211 Actual/360 No
26.4 0 9,066 0.0211 Actual/360 No
26.5 0 8,252 0.0211 Actual/360 No
26.6 0 8,057 0.0211 Actual/360 No
26.7 0 6,647 0.0211 Actual/360 No
27 360 92,763 0.0211 Actual/360 Yes Initial Rate + 2%
28 358 82,155 0.0811 Actual/360 No
29 360 81,801 0.0211 Actual/360 No
30 360 77,809 0.0211 Actual/360 No
31 360 74,126 0.04393 Actual/360 No
32 0 51,257 0.0211 30/360 No
33 0 49,017 0.0211 30/360 No
34 360 69,655 0.0811 Actual/360 No
35 360 69,017 0.0764 Actual/360 No
36 360 66,562 0.0778 Actual/360 No
37 360 65,324 0.0211 Actual/360 No
38 360 66,599 0.0211 Actual/360 No
39 0 47,707 0.0211 30/360 No
40 360 62,658 0.0211 Actual/360 No
41 360 62,607 0.04806 Actual/360 No
42 360 61,701 0.0211 Actual/360 No
43 360 61,975 0.0211 Actual/360 No
44 360 60,393 0.0211 Actual/360 No
45 359 54,049 0.0211 Actual/360 No
46 359 55,152 0.0811 Actual/360 No
47 360 54,267 0.1111 Actual/360 No
48 360 50,749 0.0211 Actual/360 No
49 358 53,525 0.0211 Actual/360 No
50 360 49,898 0.0501 Actual/360 No
51 359 47,875 0.0211 Actual/360 No
52 360 49,313 0.0491 Actual/360 No
53 357 47,063 0.0211 Actual/360 No
54 0 33,810 0.0211 30/360 No
55 360 47,484 0.1111 Actual/360 No
56 360 44,716 0.0211 Actual/360 No
57 360 43,362 0.0541 Actual/360 No
58 360 40,170 0.0711 Actual/360 No
59 298 45,833 0.0211 Actual/360 No
60 360 40,537 0.0211 Actual/360 No
61 300 42,383 0.0211 Actual/360 No
62 360 39,403 0.0211 Actual/360 No
63 360 38,891 0.0511 Actual/360 No
64 360 36,029 0.0211 Actual/360 No
65 360 37,081 0.0211 Actual/360 No
66 355 38,450 0.0711 Actual/360 No
67 359 38,139 0.0811 Actual/360 No
68 298 43,370 0.0211 Actual/360 No
69 359 35,092 0.0211 Actual/360 No
70 360 34,795 0.0211 Actual/360 No
71 0 28,119 0.0211 Actual/360 No
72 0 25,095 0.0211 30/360 No
73 360 33,283 0.0911 Actual/360 No
74 360 34,660 0.0211 Actual/360 No
75 324 37,077 0.0211 Actual/360 No
76 0 28,497 0.0211 Actual/360 No
77 360 33,496 0.0711 Actual/360 No
78 0 25,198 0.0211 30/360 No
79 360 33,172 0.0211 Actual/360 No
80 360 33,244 0.0211 Actual/360 No
81 359 33,467 0.0711 Actual/360 No
82 360 32,948 0.0211 Actual/360 No
83 360 32,051 0.0211 Actual/360 No
84 357 36,305 0.0211 Actual/360 No
85 360 31,705 0.0711 Actual/360 No
86 358 30,867 0.0211 Actual/360 No
87 360 32,471 0.0211 Actual/360 No
88 360 29,223 0.0211 Actual/360 No
89 360 28,715 0.0211 Actual/360 No
90 360 28,036 0.0811 Actual/360 No
91 360 27,890 0.0211 Actual/360 No
92 360 27,486 0.0211 Actual/360 No
93 0 20,766 0.0211 30/360 No
94 359 26,940 0.0511 Actual/360 No
95 360 27,342 0.0211 Actual/360 No
95.1 0.0211
95.2 0.0211
96 360 26,655 0.0211 Actual/360 No
97 360 25,945 0.0211 Actual/360 No
98 360 24,849 0.0211 Actual/360 No
99 358 26,118 0.0211 Actual/360 No
100 358 23,823 0.0811 Actual/360 No
101 359 24,400 0.0511 Actual/360 No
102 0 20,826 0.0211 Actual/360 No
103 360 24,305 0.0211 Actual/360 No
104 360 23,545 0.0211 Actual/360 No
105 360 23,427 0.0211 Actual/360 No
106 359 23,707 0.0211 Actual/360 No
107 359 23,615 0.0211 Actual/360 No
108 358 22,635 0.0211 Actual/360 No
109 360 21,669 0.0711 Actual/360 No
110 360 21,671 0.0211 Actual/360 No
111 360 22,070 0.0211 Actual/360 No
112 360 21,141 0.0211 Actual/360 No
113 359 22,005 0.0711 Actual/360 No
114 360 21,300 0.0211 Actual/360 No
115 358 21,861 0.0211 Actual/360 No
116 360 22,007 0.0811 Actual/360 No
117 298 23,199 0.0211 Actual/360 No
118 360 20,407 0.1111 Actual/360 No
119 359 20,562 0.0511 Actual/360 No
120 360 20,639 0.0811 Actual/360 No
121 359 20,588 0.0711 Actual/360 No
122 360 20,344 0.0211 Actual/360 No
123 298 23,117 0.0211 Actual/360 No
124 360 19,991 0.0611 Actual/360 No
125 359 20,036 0.0211 Actual/360 No
126 359 19,750 0.0211 Actual/360 No
127 360 19,610 0.0611 Actual/360 No
128 294 22,019 0.0211 Actual/360 No
129 360 18,944 0.1111 Actual/360 No
130 358 19,697 0.0211 Actual/360 No
131 360 18,658 0.0211 Actual/360 No
132 360 18,540 0.0211 Actual/360 No
133 360 18,561 0.0211 Actual/360 No
134 360 19,007 0.0211 Actual/360 No
135 359 19,091 0.0211 Actual/360 No
136 360 18,278 0.0811 Actual/360 No
137 359 17,932 0.0711 Actual/360 No
138 359 17,483 0.0511 Actual/360 No
139 360 16,910 0.0211 Actual/360 No
140 358 18,947 0.0211 Actual/360 No
141 359 16,967 0.0211 Actual/360 No
142 358 17,234 0.0711 Actual/360 No
143 360 17,027 0.0211 Actual/360 No
144 0 12,601 0.0211 Actual/360 No
145 360 17,375 0.0211 Actual/360 No
146 360 17,336 0.0211 Actual/360 No
147 359 16,865 0.0211 Actual/360 No
148 359 17,122 0.0211 Actual/360 No
149 359 16,375 0.0211 Actual/360 No
150 240 19,534 0.0211 Actual/360 No
151 300 17,949 0.0211 Actual/360 No
152 358 16,745 0.0211 Actual/360 No
153 358 16,149 0.0211 Actual/360 No
154 359 16,075 0.0211 Actual/360 No
155 359 15,723 0.0211 Actual/360 No
156 359 15,394 0.0511 Actual/360 No
157 299 17,896 0.0211 Actual/360 No
158 360 15,258 0.0211 Actual/360 No
159 299 16,414 0.0211 Actual/360 No
160 360 14,969 0.0211 Actual/360 No
161 358 15,027 0.0211 Actual/360 No
162 240 18,738 0.0211 Actual/360 No
163 360 14,584 0.0211 Actual/360 No
164 359 15,553 0.0211 Actual/360 No
164.1 0.0211
164.2 0.0211
164.3 0.0211
165 360 14,616 0.0211 Actual/360 No
166 0 10,572 0.0211 Actual/360 No
167 359 14,185 0.0511 Actual/360 No
168 299 15,221 0.0211 Actual/360 No
169 359 14,136 0.0211 Actual/360 No
170 359 13,965 0.0511 Actual/360 No
171 360 13,991 0.0211 Actual/360 No
172 360 13,805 0.0211 Actual/360 No
173 359 13,697 0.0211 Actual/360 No
174 360 14,125 0.0211 Actual/360 No
175 360 13,821 0.0211 Actual/360 No
176 360 13,520 0.0211 Actual/360 No
177 359 13,702 0.0211 Actual/360 No
178 358 13,672 0.0811 Actual/360 No
179 360 13,044 0.0211 Actual/360 No
180 360 12,900 0.0211 Actual/360 No
181 359 13,510 0.1111 Actual/360 No
182 298 14,345 0.0211 Actual/360 No
183 359 12,480 0.0211 Actual/360 No
184 360 12,383 0.0211 Actual/360 No
185 360 12,753 0.0211 Actual/360 No
186 355 12,271 0.0211 Actual/360 No
187 360 11,865 0.0211 Actual/360 No
188 360 12,009 0.0211 Actual/360 No
189 360 11,501 0.0211 Actual/360 No
190 360 11,469 0.1111 Actual/360 No
191 360 11,056 0.0211 Actual/360 No
192 239 14,213 0.0211 Actual/360 No
193 355 11,650 0.0211 Actual/360 No
194 297 12,282 0.1361 Actual/360 No
195 360 11,076 0.0211 Actual/360 No
196 360 10,567 0.0211 Actual/360 No
197 300 11,759 0.0211 Actual/360 No
198 360 10,428 0.0211 Actual/360 No
199 358 11,080 0.1311 Actual/360 No
200 360 10,031 0.0211 Actual/360 No
201 359 10,413 0.0211 Actual/360 No
202 357 10,322 0.1361 Actual/360 No
203 360 9,870 0.0211 Actual/360 No
204 359 9,664 0.0211 Actual/360 No
205 360 9,679 0.0211 Actual/360 No
206 299 10,511 0.0211 Actual/360 No
207 360 9,792 0.0211 Actual/360 No
208 360 9,468 0.0811 Actual/360 No
209 359 9,526 0.0211 Actual/360 No
210 360 9,216 0.0211 Actual/360 No
211 359 9,145 0.0211 Actual/360 No
212 360 8,651 0.0211 Actual/360 No
213 359 8,783 0.0211 Actual/360 No
214 300 9,686 0.0211 Actual/360 No
215 360 8,332 0.0211 Actual/360 No
216 360 7,893 0.0211 Actual/360 No
217 120 15,152 0.0211 Actual/360 No
218 359 7,940 0.0711 Actual/360 No
219 299 8,631 0.0211 Actual/360 No
220 359 7,308 0.0211 Actual/360 No
221 358 7,147 0.0211 Actual/360 No
222 178 10,684 0.0211 Actual/360 No
223 359 7,091 0.0711 Actual/360 No
224 0 5,081 0.0211 Actual/360 No
225 360 6,811 0.0211 Actual/360 No
226 340 7,193 0.0211 Actual/360 No
227 298 7,405 0.1361 Actual/360 No
228 360 6,600 0.0211 Actual/360 No
229 359 6,275 0.0211 Actual/360 No
230 299 6,821 0.0211 Actual/360 No
231 360 6,039 0.0711 Actual/360 No
232 358 5,912 0.0211 Actual/360 No
Originator/
Loan # Title Type Crossed Loan Loan Seller
------ ---------- ------------ -----------
1 Fee LaSalle
2 Leasehold JPMorgan
2.1 Leasehold JPMorgan
2.2 Leasehold JPMorgan
2.3 Leasehold JPMorgan
3 Fee JPMorgan
4 Fee LaSalle
5 Fee LaSalle
6 Fee JPMorgan
7 Fee Nomura
8 Fee LaSalle
9 Fee JPMorgan
10 Fee JPMorgan
11 Fee LaSalle
12 Fee Nomura
13 Fee Nomura
14 Fee Nomura
15 Fee Nomura
16 Fee JPMorgan
17 Fee JPMorgan
18 Fee JPMorgan
19 Fee LaSalle
20 Fee Nomura
21 Fee Nomura
22 Fee Nomura
23 Fee JPMorgan
24 Fee JPMorgan
25 Fee Nomura
26 Fee JPMorgan
26.1 Fee JPMorgan
26.2 Fee JPMorgan
26.3 Fee JPMorgan
26.4 Fee JPMorgan
26.5 Fee JPMorgan
26.6 Fee JPMorgan
26.7 Fee JPMorgan
27 Fee LaSalle
28 Fee Nomura
29 Fee Nomura
30 Fee JPMorgan
31 Fee JPMorgan
32 Fee Nomura
33 Fee Nomura
34 Fee JPMorgan
35 Fee JPMorgan
36 Fee JPMorgan
37 Fee JPMorgan
38 Leasehold JPMorgan
39 Fee Nomura
40 Fee A Nomura
41 Fee JPMorgan
42 Fee LaSalle
43 Fee JPMorgan
44 Fee Nomura
45 Fee JPMorgan
46 Fee Nomura
47 Fee E LaSalle
48 Fee Nomura
49 Fee Nomura
50 Fee JPMorgan
51 Leasehold JPMorgan
52 Fee JPMorgan
53 Fee Nomura
54 Fee LaSalle
55 Fee E LaSalle
56 Fee C Nomura
57 Fee JPMorgan
58 Fee JPMorgan
59 Fee LaSalle
60 Fee Nomura
61 Fee LaSalle
62 Fee LaSalle
63 Fee LaSalle
64 Fee JPMorgan
65 Fee JPMorgan
66 Fee JPMorgan
67 Fee Nomura
68 Fee LaSalle
69 Fee LaSalle
70 Fee Nomura
71 Fee Nomura
72 Fee Nomura
73 Fee JPMorgan
74 Fee JPMorgan
75 Fee LaSalle
76 Fee LaSalle
77 Fee JPMorgan
78 Fee Nomura
79 Fee A Nomura
80 Fee JPMorgan
81 Fee JPMorgan
82 Fee B Nomura
83 Fee LaSalle
84 Fee LaSalle
85 Fee JPMorgan
86 Fee Nomura
87 Fee Nomura
88 Fee JPMorgan
89 Fee LaSalle
90 Fee Nomura
91 Fee JPMorgan
92 Fee JPMorgan
93 Fee LaSalle
94 Fee D JPMorgan
95 Fee LaSalle
95.1 Fee LaSalle
95.2 Fee LaSalle
96 Fee LaSalle
97 Fee JPMorgan
98 Fee LaSalle
99 Fee LaSalle
100 Fee Nomura
101 Fee D JPMorgan
102 Fee LaSalle
103 Fee F LaSalle
104 Fee Nomura
105 Fee LaSalle
106 Fee LaSalle
107 Fee Nomura
108 Fee LaSalle
109 Fee JPMorgan
110 Fee B Nomura
111 Fee Nomura
112 Fee Nomura
113 Fee LaSalle
114 Fee Nomura
115 Fee LaSalle
116 Fee Nomura
117 Fee LaSalle
118 Fee JPMorgan
119 Fee D JPMorgan
120 Fee Nomura
121 Fee JPMorgan
122 Fee A Nomura
123 Fee LaSalle
124 Fee JPMorgan
125 Fee Nomura
126 Fee Nomura
127 Fee JPMorgan
128 Fee LaSalle
129 Fee JPMorgan
130 Fee Nomura
131 Fee Nomura
132 Fee JPMorgan
133 Fee Nomura
134 Fee LaSalle
135 Fee LaSalle
136 Fee Nomura
137 Fee JPMorgan
138 Fee D JPMorgan
139 Fee Nomura
140 Fee LaSalle
141 Fee Nomura
142 Fee LaSalle
143 Fee C Nomura
144 Fee JPMorgan
145 Fee Nomura
146 Fee Nomura
147 Fee LaSalle
148 Fee LaSalle
149 Fee LaSalle
150 Fee LaSalle
151 Fee LaSalle
152 Fee LaSalle
153 Fee LaSalle
154 Fee LaSalle
155 Fee JPMorgan
156 Fee D JPMorgan
157 Fee LaSalle
158 Fee B Nomura
159 Fee LaSalle
160 Fee JPMorgan
161 Fee Nomura
162 Fee Nomura
163 Fee Nomura
164 Fee LaSalle
164.1 Fee LaSalle
164.2 Fee LaSalle
164.3 Fee LaSalle
165 Fee Nomura
166 Fee JPMorgan
167 Fee D JPMorgan
168 Fee LaSalle
169 Fee LaSalle
170 Fee D JPMorgan
171 Fee C Nomura
172 Fee JPMorgan
173 Fee Nomura
174 Fee LaSalle
175 Leasehold JPMorgan
176 Fee JPMorgan
177 Fee LaSalle
178 Fee Nomura
179 Fee B Nomura
180 Fee C Nomura
181 Fee LaSalle
182 Fee LaSalle
183 Fee JPMorgan
184 Fee A Nomura
185 Fee F LaSalle
186 Fee Nomura
187 Fee C Nomura
188 Fee LaSalle
189 Fee B Nomura
190 Fee JPMorgan
191 Fee B Nomura
192 Fee JPMorgan
193 Fee LaSalle
194 Fee LaSalle
195 Fee LaSalle
196 Fee JPMorgan
197 Fee LaSalle
198 Fee C Nomura
199 Fee LaSalle
200 Fee A Nomura
201 Fee LaSalle
202 Fee LaSalle
203 Fee C Nomura
204 Fee Nomura
205 Fee C Nomura
206 Fee LaSalle
207 Fee LaSalle
208 Fee JPMorgan
209 Fee LaSalle
210 Fee LaSalle
211 Fee LaSalle
212 Fee C Nomura
213 Fee LaSalle
214 Fee LaSalle
215 Fee A Nomura
216 Fee C Nomura
217 Fee LaSalle
218 Fee JPMorgan
219 Fee LaSalle
220 Fee LaSalle
221 Fee LaSalle
222 Fee LaSalle
223 Fee JPMorgan
224 Fee JPMorgan
225 Fee B Nomura
226 Fee LaSalle
227 Fee LaSalle
228 Fee A Nomura
229 Fee LaSalle
230 Fee Nomura
231 Fee LaSalle
232 Fee LaSalle
Letter of
Loan # Guarantor Credit
------ --------- ------
1 General Growth, GGPLP L.L.C., GGP-TRS, TRS,
GGP/Homart II L.L.C., GGP Holding, Inc., GGP Holding II, Inc.,
Price, Xxxxx Company, Xxxxx OP and/or GGP/Homart, Inc. No
2 Loews Corporation, NBC Universal, The Rank Group PLC No
2.1 Loews Corporation, NBC Universal, The Rank Group PLC No
2.2 Loews Corporation, NBC Universal, The Rank Group PLC No
2.3 Loews Corporation, NBC Universal, The Rank Group PLC No
3 Enpro International Inc. Xx
0 Xx
0 XXXXX Xxxxxxx REIT III, Inc. No
6 Lubent-Xxxxx and the Xxxxxxx Group No
7 Xxxxxx X. Xxxx No
8 Caplease Credit LLC No
9 Lexington Corporate Properties Trust and the Utah State Retirement Fund No
10 AB Partners No
11 Jeat Xxxxxx No
12 Inland Western Retail Real Estate Trust, Inc No
13 Xxxxxxx X. Xxxxxxxxx 726,388.4
14 Xxxxxx X. Xxxxxxxx No
15 None No
16 Mr. Xxxxx Xxxxxxx No
17 Ariel Holdings, LLC, Xxxxxx Xxxxxx No
18 Xxx X. Xxxxxx, Xxxx X. Xxxxxxx 1,225,000.0
19 Xxxx X. Xxxxx, Xxxxxx Xxxxxxxxx (Kenilworth Limited Partnership signed No
an IDOT Guaranty Agreement)
20 Xxxx Xxxxx, Xxxxxx Xxxxxx No
21 CWS Apartment Homes, LLC, Xxxxxxx X. Xxxxxxx, as Trustee of the No
Xxxx X. and Xxxx X. Xxxxxxx Family Trust
22 None No
23 Lexington Corporate Properties Trust No
24 Lexington Corporate Properties Trust No
25 Triumph Management Company No
26 Prudential Insurance Company of America No
26.1 Prudential Insurance Company of America No
26.2 Prudential Insurance Company of America No
26.3 Prudential Insurance Company of America No
26.4 Prudential Insurance Company of America No
26.5 Prudential Insurance Company of America No
26.6 Prudential Insurance Company of America No
26.7 Prudential Insurance Company of America No
27 Xxxx X. Xxxx No
28 Dr. M. T. Aliniazee No
29 Xxxxx Xxxxxxxxxx, Xxxxxx Xxxxxxxx, Xxxxx Xxxxxx, FSG Partners, LLP No
30 Xxxxxxx Xxxxxxxx No
31 Lexington Corporate Properties Trust Xx
00 Xxxxxx Xxxxxxx Xxxxxx Xxxx Xxxxxx Trust, Inc. Xx
00 Xxxxxx Xxxxxxx Xxxxxx Xxxx Xxxxxx Trust, Inc. No
34 Xxxxxx Xxxxxxx, Triple Three, LLC No
35 H & R Reit (U.S.) Holdings Inc., Xxxx Xxxxx No
00 Xxxxx Xxxxxxxxx Investments, Inc No
37 Xxxx X. Xxxxx No
38 Xxxx Xxxxx No
39 Inland Western Retail Real Estate Trust, Inc No
40 H. K. Realty, Inc. No
41 Lexington Corporate Properties Trust No
42 Xxx X. Xxx No
43 Fern Family Properties, LLC No
44 Ronald K. Weiss No
45 Norman Riback No
46 Ching Feng Chien, Yuen-Yun Chien No
47 James W. Lewis, Jr., Christopher R. Lewis No
48 Kip Skidmore, Joseph Barkett No
49 Stephen T. McLean No
50 Lexington Corporate Properties Trust No
51 Hi Chat-Lem/Iowa-New Orleans Joint Venture No
52 Lexington Corporate Properties Trust No
53 Stephen D. Tebo, David E. Chaknova No
54 Inland Western Retail Real Estate Trust, Inc. No
55 James W. Lewis, Jr., Christopher R. Lewis No
56 H. K. Realty, Inc. No
57 Lexington Corporate Properties Trust No
58 Thomas Kuschinski, Iqbal S. Uppal No
59 Paul U. Strauss, MD No
60 Gary Grossman No
61 Stuart F. Kline No
62 John D. Maleno No
63 Wayne Pierce, George R. Walker III No
64 Howard S. Rich No
65 GH Capital LLC No
66 Matthew Jonna, Edward Jonna 350,000.0
67 Richard M. Campbell, Jud J. Reidy, Michael D. Tarandy, Richard O. Wright No
68 Meletios Doucas No
69 Jeffry L. Stoddard No
70 Lawrence T. Maxwell No
71 Hugh Ray, George S. Ray, Jr., Alex Williams No
72 Inland Western Pawtucket Boulevard, L.L.C., No
Inland Western Retail Real Estate Trust, Inc
73 John H. Rust, Jr. No
74 Robert C. Collett No
75 Michael T. Gacioch, William T. Gacioch No
76 Michael L. Stern No
77 Michael R. Batdorf, Rex Palmer, and Lucinda Palmer 175,000.0
78 Inland Western Retail Real Estate Trust, Inc. No
79 H. K. Realty, Inc. No
80 GH Capital LLC, Gregory F. Perlman No
81 Lawrence A. Debb, John Kosich No
82 H. K. Realty, Inc. No
83 Frederick F. Rouse 70,000.0
84 Patrick C. Stacker, John S. Levy, John Mock No
85 Abraham Nechemia No
86 Victor P. Snider No
87 Matthew C. Daniels, Timothy S. Baird, Steven J. Kelly No
88 Sidney Coleman, Robert Coleman No
89 Stratford Land Development Company Limited Partnership No
90 Donald R. Bumpus No
91 Ceres Realty Fund, LLC No
92 Peter Kempner No
93 Inland Western Retail Real Estate Trust, Inc. No
94 James S. Womack A/K/A Steve Womack No
95 Lawrence J. Shaheen, J. Michael Shaheen No
95.1
95.2
96 Charles E. Paschall, Jr. No
97 Eugene Wong No
98 Stratford Land Development Company Limited Partnership No
99 Albert M. Friedman No
100 John H. Cox No
101 James S. Womack A/K/A Steve Womack No
102 Bruce R. Tolchin No
103 Jeffrey J. Haen No
104 Gary Grossman No
105 Donald J. Tenney, Carol A. Tenney No
106 Isam Khoury No
107 Michael J. Boyd, Thomas Boyd No
108 C. Robert Nicolls, II No
109 Michael J. Willner No
110 H. K. Realty, Inc. No
111 Jason Larson, Matthew A. Haslett, Joan B. Haslett, Peter Fong,
Mari Stein McWilliams, Grant B. Hughes, Neal Schnitzer No
112 Gary Grossman No
113 Dale Ladner No
114 John Gutowski, Henry Gutowski, Janice M. Gutowski No
115 Richard Morgese No
116 Maurice D. Holman, David Dimeo, Darlene Dimeo, Faye Marie Ward, 200,000.0
Donald M. Kilpatrick
117 Matthew B. Lester No
118 McCandless Land & Cattle Company, Cynthia M. Salley No
119 James S. Womack A/K/A Steve Womack No
120 David Dimeo 65,000.0
121 Miller-Valentine Partners Ltd. No
122 H. K. Realty, Inc. No
123 Bryan D. Holker, Valerie Goodwin Danzig No
124 A & C Properties, Inc. No
125 William M. Budinger No
Maurice D. Holman, Donald M. Kilpatrick, Paula Kilpatrick,
126 Jack L. Ward, Faye Marie Ward, and Commonwealth Investors, L.L.C. No
127 John A. Henry & Co., Ltd. No
128 Michael C. Schoeffner, Housing Systems Incorporated No
129 Samuel W. Pure No
130 Henry Forrest No
131 Gary Grossman No
132 David C. Delgado No
133 Andrew Segal No
134 M. David Vaughn, Jr., Brian S. Leonard No
135 Kevin J. Metcalfe, Timothy Metcalfe 45,000.0
136 Jessie Duong No
137 Miller-Valentine Partners No
Ltd.
138 James S. Womack A/K/A Steve Womack No
139 Gregory A. Fowler Living Trust u/t/a April 27, 1995 No
140 Samuel Akuoku No
141 Douglas Shih-Yuan Hsiao No
142 Daniel Rosenfeld No
143 H. K. Realty, Inc. No
144 Stuart Handler No
145 Jim D. Guthrie No
146 Thomas B. Brenneke, John E. Strong, Alan Maltun, Donna Birckhead,
Vivian Lardizabal, Fred Michel, Derek H. Marble, John Jennings,
Joseph L. Frani No
147 J. Allen Radford No
148 Arnold Krieger, Peter Sobelton No
149 George B. Pentz, Dale O'Toole No
150 David S. Bowen No
151 Peter J. Landers No
152 Stephen E. Thorne, IV No
153 M. Turner Harshaw No
154 Michael P. Schmidt No
155 Robert M. Coleman, III No
156 James S. Womack A/K/A Steve Womack No
157 Donald J. Tenney, Carol A. Tenney No
158 H. K. Realty, Inc. No
159 John W. Bender, Timothy J.Mitchell No
160 David C. Delgado No
161 Louis E. Vogt, Scott Zimmerman No
162 Jeffrey B. Good, Andrea B. Good No
163 Michael J. Brickman No
164 Richard C. Johns No
164.1
164.2
164.3
165 Michael D. Haisfield No
166 Stuart Handler No
167 James S. Womack A/K/A Steve Womack No
168 John W. Bender, Timothy J.Mitchell No
169 Kendall M. Young, Muriel S. Young No
170 James S. Womack A/K/A Steve Womack No
171 H. K. Realty, Inc. No
172 Mark A. Wolf, Diane Gallagher, Scott Applebaum No
173 Jeffrey L. Nemore No
174 William E. Eiseman 355,000.0
175 Firehole Partners, L.P., Denny Blaine, LLC, Scott M. Pozzi, No
David L. Aoyagi, Ken Pacioni
176 Brett E. Burris No
177 Oscar N. Harris No
178 Fidel Aranda, Francisca Aranda, Modesto Roman, Cecilia B. Roman No
179 H. K. Realty, Inc. No
180 H. K. Realty, Inc. No
181 Larry Daily, Jerry Tropper, Nathan Tropper No
182 Michael A. Stoff No
183 Lawrence N. Field No
184 H. K. Realty, Inc. No
185 Jefferey J. Haen No
186 George S. Hedley III, John D. Pierce No
187 H. K. Realty, Inc. No
188 Jeffrey J. Haen No
189 H. K. Realty, Inc. No
190 Sumin Mark Huang, Wei-O Huang No
191 H. K. Realty, Inc. No
192 Fereydoun Khalili No
193 James T. Traylor, Jean M. Traylor No
194 Richard H. Doummar and William C. Overman, III No
195 Richard Mockovak, Andrew D. Noble No
196 Gregory F. Perlman No
197 Linda K. Sadeghi, Shaheen Sadeghi No
198 H. K. Realty, Inc. No
199 Stuart L. Cass, L. Joseph Land, Milton J. Zahler, Jr. No
200 H. K. Realty, Inc. No
201 Michel Danon, Christy A. Thuesen No
202 Steven W. Corbett No
203 H. K. Realty, Inc. No
204 Philip J. Cascavilla and Robert Acree No
205 H. K. Realty, Inc. No
206 David T. Phillips, David R. Shea, Norman Weitzel No
207 M. David Vaughn, Jr., Brian S. Leonard No
208 Moon B. Bae No
209 Ely K. Tsern No
210 M. David Vaughn, Jr., Brian S. Leonard No
211 Dean T. Lucker, Allen W. Stewart, Jay W. Feider No
212 H. K. Realty, Inc. No
213 Richard T. Gallacher No
214 Therese M. Dube, Steven L. Dube, Eugene E. Lonergan No
215 H. K. Realty, Inc. No
216 H. K. Realty, Inc. No
217 Gideon Levy, Eli Peretz No
218 Laurence Consolidated Trust No
219 Edward W. Vogelsong No
220 Salvatore E. Bologna No
221 Robert G. Lewis, Jr., Jerry L. Stephens No
222 David D. Persac, Milton J. Womack, Jr. No
223 Miller-Valentine Partners Ltd. 260,000.0
224 Stuart Handler No
225 H. K. Realty, Inc. No
226 Robert E. Martin 84,537.0
227 Michael J. Kistler No
228 H. K. Realty, Inc. No
229 Jonathan D. Sharp, Sheryl A. Sharp, William L. Sharpe No
230 Alan E. While No
231 W. Richard Matherly No
232 Alan S. Landy No
UPFRONT ESCROW
==============================================================================================================
Upfront CapEx Upfront Eng. Upfront Envir. Upfront TI/LC Upfront RE Upfront Ins. Upfront Other
Loan # Reserve Reserve Reserve Reserve Tax Reserve Reserve Reserve
------ ------- ------- ------- ------- ----------- ------- -------
1 0.00 0.00 0.00 0.00 0.00 0.00 0.00
2 0.00 0.00 0.00 0.00 0.00 0.00 0.00
2.1
2.2
2.3
3 0.00 0.00 0.00 0.00 0.00 0.00 12,047,723.00
4 0.00 0.00 0.00 0.00 0.00 0.00 0.00
5 0.00 0.00 0.00 0.00 0.00 0.00 0.00
6 0.00 0.00 0.00 732,185.40 308,648.44 20,024.33 1,000,000.00
7 0.00 14,688.00 0.00 0.00 50,941.13 177,178.83 0.00
8 0.00 0.00 0.00 0.00 0.00 0.00 0.00
9 0.00 0.00 0.00 0.00 0.00 0.00 0.00
10 0.00 0.00 0.00 0.00 0.00 0.00 0.00
11 0.00 0.00 0.00 0.00 409,832.62 0.00 10,000.00
12 0.00 0.00 0.00 0.00 0.00 0.00 0.00
13 0.00 0.00 0.00 0.00 0.00 0.00 0.00
14 0.00 0.00 0.00 0.00 373,263.98 51,625.00 0.00
15 0.00 21,250.00 0.00 1,275,000.00 0.00 0.00 0.00
16 0.00 0.00 0.00 750,000.00 79,127.20 2,706.50 0.00
17 0.00 0.00 0.00 1,500,000.00 111,033.75 13,800.00 0.00
18 0.00 0.00 0.00 0.00 88,878.60 67,642.25 0.00
19 0.00 16,000.00 0.00 0.00 52,795.86 29,610.79 0.00
20 0.00 0.00 0.00 0.00 72,564.75 2,258.33 0.00
21 0.00 0.00 0.00 0.00 260,822.29 0.00 0.00
22 0.00 0.00 0.00 0.00 0.00 0.00 1,600,000.00
23 0.00 0.00 0.00 0.00 0.00 0.00 0.00
24 0.00 0.00 0.00 0.00 0.00 0.00 0.00
25 0.00 23,681.00 0.00 0.00 33,789.40 26,965.60 28,125.00
26 0.00 0.00 0.00 0.00 95,141.00 45,488.00 0.00
26.1
26.2
26.3
26.4
26.5
26.6
26.7
27 0.00 123,312.50 0.00 810,140.00 0.00 16,113.07 0.00
28 0.00 210,000.00 0.00 0.00 43,098.81 29,502.50 0.00
29 0.00 88,480.00 0.00 500,000.00 0.00 0.00 0.00
30 0.00 0.00 0.00 0.00 78,038.44 0.00 0.00
31 0.00 0.00 0.00 0.00 0.00 0.00 0.00
32 0.00 0.00 0.00 0.00 0.00 0.00 0.00
33 0.00 0.00 0.00 0.00 0.00 0.00 0.00
34 0.00 0.00 0.00 500,000.00 45,565.09 15,048.00 0.00
35 0.00 0.00 0.00 0.00 0.00 0.00 600,000.00
36 0.00 40,000.00 0.00 100,000.00 35,532.88 10,849.00 0.00
37 0.00 0.00 0.00 0.00 30,462.98 12,250.00 510,000.00
38 50,000.00 39,000.00 0.00 0.00 232,453.76 26,886.42 0.00
39 0.00 0.00 0.00 0.00 0.00 0.00 0.00
40 0.00 3,125.00 0.00 0.00 40,589.22 14,102.60 0.00
41 0.00 0.00 0.00 0.00 0.00 0.00 0.00
42 0.00 0.00 0.00 0.00 53,884.53 3,640.00 0.00
43 0.00 0.00 0.00 0.00 31,677.92 7,795.50 0.00
44 0.00 0.00 0.00 0.00 46,307.10 1,161.83 0.00
45 0.00 0.00 0.00 0.00 0.00 0.00 0.00
46 0.00 52,125.00 0.00 0.00 35,072.83 5,614.67 0.00
47 0.00 0.00 0.00 0.00 144,111.29 0.00 0.00
48 0.00 0.00 0.00 0.00 43,757.66 8,297.50 124,445.96
49 0.00 0.00 0.00 200,000.00 0.00 0.00 0.00
50 0.00 0.00 0.00 0.00 0.00 0.00 0.00
51 0.00 23,294.00 0.00 0.00 0.00 0.00 109,620.00
52 0.00 0.00 0.00 0.00 0.00 0.00 0.00
53 0.00 0.00 0.00 0.00 0.00 323.33 94,029.00
54 0.00 0.00 0.00 0.00 0.00 0.00 0.00
55 0.00 0.00 0.00 0.00 99,664.34 0.00 0.00
56 0.00 5,625.00 0.00 0.00 19,229.91 11,872.72 0.00
57 0.00 0.00 0.00 0.00 0.00 0.00 0.00
58 0.00 0.00 0.00 0.00 81,879.48 4,524.17 0.00
59 0.00 0.00 0.00 0.00 10,436.16 0.00 0.00
60 8,820.00 0.00 0.00 0.00 36,666.67 1,509.67 11,100.00
61 0.00 12,500.00 0.00 0.00 58,831.90 13,956.00 100,000.00
62 0.00 0.00 0.00 0.00 6,541.28 1,490.67 0.00
63 0.00 13,125.00 0.00 0.00 41,834.27 23,835.07 0.00
64 0.00 0.00 0.00 0.00 174,676.42 9,739.00 0.00
65 0.00 34,375.00 0.00 0.00 30,921.33 10,921.25 0.00
66 0.00 12,500.00 15,000.00 0.00 17,048.00 6,242.25 0.00
67 0.00 0.00 0.00 0.00 2,530.50 963.17 0.00
68 0.00 0.00 0.00 0.00 42,150.77 7,871.40 0.00
69 0.00 0.00 0.00 0.00 9,348.38 8,753.33 0.00
70 0.00 0.00 0.00 0.00 46,335.00 2,840.50 0.00
71 0.00 0.00 0.00 0.00 31,506.50 2,241.67 2,500.00
72 0.00 0.00 0.00 0.00 0.00 0.00 0.00
73 0.00 203,250.00 0.00 0.00 18,001.76 2,828.50 0.00
74 0.00 0.00 0.00 38,600.00 35,877.42 12,456.75 45,690.00
75 0.00 0.00 0.00 0.00 39,133.45 31,064.52 0.00
76 0.00 0.00 0.00 0.00 36,837.21 8,297.38 0.00
77 0.00 0.00 0.00 0.00 4,826.34 3,425.50 15,625.00
78 0.00 0.00 0.00 0.00 0.00 0.00 0.00
79 0.00 0.00 0.00 0.00 23,492.40 9,127.10 0.00
80 0.00 2,250.00 0.00 0.00 38,837.50 56,527.25 1,800.00
81 0.00 0.00 0.00 510,475.00 63,874.05 666.67 36,452.50
82 0.00 9,375.00 0.00 0.00 10,812.85 12,210.84 0.00
83 0.00 0.00 0.00 0.00 0.00 3,615.73 0.00
84 0.00 0.00 0.00 0.00 26,980.23 34,194.84 0.00
85 0.00 5,000.00 0.00 0.00 26,395.79 6,526.00 0.00
86 0.00 10,000.00 0.00 0.00 45,999.81 4,156.17 0.00
87 0.00 0.00 0.00 25,000.00 18,432.43 10,502.50 6,500.00
88 0.00 0.00 0.00 0.00 13,552.46 6,805.82 0.00
89 0.00 13,485.00 0.00 0.00 43,977.68 0.00 0.00
90 0.00 0.00 0.00 0.00 19,716.85 9,984.58 0.00
91 0.00 0.00 0.00 0.00 7,280.81 6,992.00 40,000.00
92 0.00 10,938.00 0.00 0.00 55,930.18 0.00 0.00
93 0.00 0.00 0.00 0.00 0.00 0.00 0.00
94 0.00 0.00 0.00 0.00 28,884.41 550.00 0.00
95 0.00 0.00 0.00 0.00 30,312.63 5,000.67 0.00
95.1
95.2
96 0.00 0.00 0.00 0.00 39,972.75 18,720.00 0.00
97 0.00 0.00 0.00 0.00 0.00 0.00 0.00
98 0.00 10,579.00 0.00 0.00 52,286.93 0.00 0.00
99 0.00 0.00 0.00 0.00 14,213.20 0.00 2,864.00
100 0.00 34,687.50 0.00 0.00 15,840.50 16,046.58 0.00
101 0.00 0.00 0.00 0.00 13,231.05 550.00 0.00
102 0.00 0.00 0.00 0.00 15,574.90 11,344.32 0.00
103 0.00 0.00 0.00 0.00 10,876.78 2,661.01 0.00
104 6,038.00 0.00 0.00 0.00 19,333.33 1,326.67 0.00
105 0.00 0.00 0.00 0.00 0.00 0.00 20,000.00
106 0.00 5,125.00 0.00 0.00 25,676.96 9,304.62 0.00
107 0.00 21,125.00 0.00 0.00 18,377.79 9,685.67 0.00
108 0.00 0.00 0.00 0.00 9,915.34 19,943.67 0.00
109 0.00 16,000.00 0.00 0.00 0.00 0.00 0.00
110 0.00 2,625.00 0.00 0.00 9,086.28 3,306.30 0.00
111 0.00 0.00 0.00 0.00 7,034.10 4,766.29 62,640.84
112 11,608.00 4,375.00 0.00 0.00 32,587.50 1,053.17 0.00
113 0.00 0.00 0.00 0.00 0.00 0.00 0.00
114 0.00 6,937.50 0.00 0.00 6,517.24 28,672.42 0.00
115 0.00 0.00 0.00 0.00 0.00 0.00 0.00
116 0.00 0.00 0.00 0.00 15,080.78 1,050.00 0.00
117 0.00 300,000.00 0.00 0.00 0.00 7,882.82 0.00
118 0.00 22,040.00 0.00 95,000.00 67,863.73 4,542.00 0.00
119 0.00 0.00 0.00 0.00 23,449.23 550.00 0.00
120 0.00 0.00 0.00 66,000.00 8,894.72 606.25 69,900.00
121 0.00 0.00 0.00 0.00 29,534.26 14,642.50 0.00
122 0.00 0.00 0.00 0.00 7,125.05 3,236.75 0.00
123 0.00 0.00 0.00 0.00 0.00 0.00 0.00
124 0.00 0.00 0.00 18,000.00 11,897.67 1,651.33 0.00
125 0.00 0.00 0.00 60,000.00 7,209.30 2,611.92 23,591.00
126 0.00 0.00 0.00 51,060.00 20,789.43 712.92 0.00
127 0.00 100,975.00 0.00 122,000.00 11,117.25 11,247.17 0.00
128 0.00 538,750.00 0.00 0.00 6,606.36 39,079.17 0.00
129 0.00 14,591.25 0.00 50,000.00 8,019.27 4,419.66 0.00
130 0.00 0.00 0.00 0.00 15,840.00 1,337.00 0.00
131 5,485.00 0.00 0.00 0.00 15,400.00 1,484.67 0.00
132 0.00 0.00 0.00 100,000.00 28,316.21 6,854.94 0.00
133 0.00 0.00 0.00 0.00 21,981.17 5,662.27 54,875.00
134 0.00 0.00 0.00 0.00 46,152.31 5,116.02 0.00
135 0.00 0.00 0.00 0.00 0.00 0.00 0.00
136 0.00 1,250.00 0.00 0.00 16,564.39 546.83 0.00
137 0.00 0.00 0.00 0.00 32,071.62 10,932.50 0.00
138 0.00 8,543.00 0.00 0.00 13,447.40 550.00 0.00
139 0.00 10,000.00 0.00 210,860.00 2,468.90 3,023.89 0.00
140 0.00 0.00 0.00 0.00 0.00 709.37 0.00
141 69,000.00 11,250.00 0.00 50,000.00 2,634.20 204.25 65,000.00
142 0.00 0.00 0.00 50,000.00 8,732.18 12,676.20 0.00
143 0.00 3,688.00 0.00 0.00 12,243.57 5,021.51 0.00
144 0.00 0.00 120,000.00 0.00 86,302.83 0.00 0.00
145 0.00 0.00 0.00 0.00 12,637.73 2,287.00 0.00
146 0.00 0.00 0.00 0.00 18,378.21 2,581.00 0.00
147 0.00 0.00 0.00 0.00 15,329.30 3,941.60 0.00
148 0.00 0.00 0.00 0.00 30,982.37 1,327.92 0.00
149 0.00 0.00 0.00 0.00 15,533.25 1,310.66 0.00
150 49,895.00 0.00 0.00 22,555.00 22,359.75 1,763.15 0.00
151 0.00 0.00 0.00 0.00 21,187.67 4,189.12 0.00
152 0.00 0.00 0.00 0.00 3,867.24 733.72 0.00
153 0.00 0.00 0.00 0.00 0.00 445.81 0.00
154 0.00 0.00 0.00 0.00 21,190.83 2,262.78 0.00
155 0.00 0.00 11,250.00 0.00 11,894.67 3,462.75 67,000.00
156 0.00 9,674.00 0.00 0.00 14,949.80 550.00 0.00
157 0.00 0.00 0.00 0.00 0.00 0.00 0.00
158 0.00 0.00 0.00 0.00 7,312.49 3,424.00 0.00
159 0.00 0.00 0.00 0.00 5,201.86 520.00 0.00
160 0.00 0.00 0.00 0.00 27,751.74 1,590.00 0.00
161 0.00 0.00 0.00 0.00 31,333.33 13,532.09 0.00
162 0.00 105,813.00 0.00 0.00 21,803.75 3,988.00 0.00
163 0.00 52,500.00 0.00 0.00 6,766.66 0.00 0.00
164 0.00 27,500.00 0.00 0.00 7,679.89 4,483.70 0.00
164.1
164.2
164.3
165 0.00 0.00 0.00 0.00 3,887.97 1,010.00 0.00
166 0.00 0.00 0.00 0.00 58,565.33 0.00 0.00
167 0.00 9,831.00 0.00 0.00 7,648.29 550.00 0.00
168 0.00 0.00 0.00 0.00 5,472.99 450.67 0.00
169 0.00 0.00 0.00 0.00 0.00 0.00 0.00
170 0.00 0.00 0.00 0.00 7,465.45 550.00 0.00
171 0.00 3,250.00 0.00 0.00 8,358.13 3,585.57 0.00
172 0.00 14,965.00 0.00 0.00 4,927.00 8,597.25 0.00
173 0.00 0.00 0.00 0.00 6,861.17 3,903.50 0.00
174 0.00 0.00 0.00 0.00 4,723.68 3,080.22 0.00
175 0.00 0.00 0.00 0.00 25,780.62 4,185.52 0.00
176 0.00 0.00 0.00 0.00 8,877.92 384.00 0.00
177 0.00 0.00 0.00 0.00 24,204.65 3,611.40 0.00
178 0.00 0.00 0.00 70,000.00 19,133.33 2,558.75 0.00
179 0.00 2,500.00 0.00 0.00 8,451.93 7,644.08 0.00
180 0.00 9,375.00 0.00 0.00 7,601.24 3,884.10 0.00
181 0.00 2,861.25 0.00 0.00 12,053.63 1,844.70 0.00
182 0.00 0.00 0.00 0.00 0.00 3,776.93 0.00
183 0.00 1,250.00 0.00 180,000.00 7,381.00 2,180.00 0.00
184 0.00 1,875.00 0.00 0.00 6,118.49 4,118.43 0.00
185 0.00 0.00 0.00 0.00 0.00 1,283.88 0.00
186 0.00 101,500.00 0.00 50,000.00 2,490.90 1,168.68 50,000.00
187 0.00 18,125.00 0.00 0.00 6,361.44 2,532.69 0.00
188 0.00 0.00 0.00 0.00 6,301.94 3,059.51 0.00
189 0.00 3,750.00 0.00 0.00 7,910.87 3,815.62 0.00
190 0.00 0.00 0.00 0.00 14,653.67 2,423.00 21,392.00
191 0.00 3,750.00 0.00 0.00 5,548.82 2,355.07 0.00
192 0.00 66,256.25 0.00 0.00 10,385.61 4,329.17 157,011.00
193 0.00 0.00 0.00 0.00 4,054.71 1,690.19 0.00
194 0.00 0.00 0.00 0.00 0.00 2,608.67 0.00
195 0.00 11,563.00 0.00 0.00 3,835.25 3,637.23 0.00
196 0.00 24,457.00 0.00 0.00 20,081.81 27,198.47 0.00
197 0.00 0.00 0.00 0.00 15,312.80 1,393.60 0.00
198 0.00 0.00 0.00 0.00 5,279.37 3,241.03 0.00
199 0.00 0.00 0.00 0.00 8,745.47 1,551.68 275,000.00
200 0.00 0.00 0.00 0.00 5,786.23 1,982.71 0.00
201 0.00 38,500.00 0.00 3,500.00 4,879.68 651.21 0.00
202 0.00 0.00 0.00 0.00 14,733.76 1,825.20 0.00
203 0.00 5,200.00 0.00 0.00 5,838.02 6,183.53 0.00
204 0.00 0.00 0.00 0.00 13,899.45 10,327.50 0.00
205 0.00 0.00 0.00 0.00 4,887.79 2,563.72 0.00
206 0.00 0.00 0.00 0.00 27,147.23 14,841.26 0.00
207 0.00 2,500.00 0.00 0.00 19,462.97 756.25 0.00
208 0.00 11,475.00 0.00 0.00 0.00 0.00 0.00
209 0.00 0.00 0.00 0.00 0.00 671.06 0.00
210 0.00 0.00 0.00 0.00 14,100.15 3,056.82 0.00
211 8,965.00 0.00 0.00 56,035.00 3,493.88 1,484.08 0.00
212 0.00 0.00 0.00 0.00 7,457.59 5,503.01 0.00
213 0.00 0.00 0.00 0.00 14,869.71 817.61 0.00
214 0.00 0.00 300.00 0.00 7,849.57 2,815.02 0.00
215 0.00 12,187.50 0.00 0.00 4,878.62 3,583.43 0.00
216 0.00 1,625.00 0.00 0.00 4,785.92 2,767.02 0.00
217 0.00 0.00 0.00 25,000.00 3,739.74 683.63 0.00
218 0.00 38,370.00 0.00 0.00 2,483.66 1,289.58 0.00
219 0.00 0.00 0.00 0.00 9,020.52 622.27 0.00
220 0.00 0.00 0.00 30,000.00 11,653.15 4,513.77 0.00
221 0.00 6,875.00 0.00 0.00 6,070.57 8,295.91 0.00
222 0.00 0.00 0.00 0.00 1,169.46 4,329.78 0.00
223 0.00 0.00 0.00 0.00 12,942.48 5,603.33 0.00
224 0.00 0.00 0.00 0.00 55,749.80 0.00 0.00
225 0.00 3,778.00 0.00 0.00 3,976.49 1,794.39 0.00
226 0.00 0.00 0.00 0.00 9,360.00 1,443.78 0.00
227 0.00 0.00 0.00 0.00 16,274.89 983.84 0.00
228 0.00 1,563.00 0.00 0.00 6,476.65 1,670.27 0.00
229 0.00 0.00 0.00 0.00 2,979.44 497.99 0.00
230 0.00 120,613.00 0.00 0.00 2,157.50 832.33 0.00
231 0.00 0.00 0.00 0.00 3,615.13 282.53 0.00
232 0.00 0.00 0.00 0.00 1,321.38 2,476.41 0.00
MONTHLY ESCROW
===============================================================================================
Monthly
Monthly Capex Envir. Monthly TI/LC Monthly RE Monthly Ins. Monthly Other
Loan # Reserve Reserve Reserve Tax Reserve Reserve Reserve
------ ------- ------- ------- ----------- ------- -------
1 0.00 0.00 0.00 0.00 0.00 0.00
2 0.00 0.00 0.00 0.00 0.00 0.00
2.1
2.2
2.3
3 0.00 0.00 0.00 0.00 0.00 0.00
4 0.00 0.00 0.00 0.00 0.00 0.00
5 0.00 0.00 0.00 0.00 0.00 0.00
6 4503.44 0.00 0.00 41998.50 10012.17 0.00
7 4374.00 0.00 0.00 16980.38 16107.17 0.00
8 0.00 0.00 0.00 0.00 0.00 0.00
9 0.00 0.00 0.00 0.00 0.00 0.00
10 0.00 0.00 0.00 0.00 0.00 0.00
11 0.00 0.00 0.00 45536.96 0.00 0.00
12 0.00 0.00 0.00 0.00 0.00 0.00
13 0.00 0.00 0.00 0.00 0.00 0.00
14 7733.34 0.00 0.00 33933.09 8604.17 0.00
15 0.00 0.00 0.00 32884.68 3990.17 0.00
16 445.47 0.00 0.00 13187.87 2706.50 0.00
17 2705.42 0.00 208333.33 37011.25 4600.00 0.00
18 3755.00 0.00 16667.00 22219.65 5203.25 0.00
19 1779.58 0.00 12394.33 17598.62 4230.11 0.00
20 0.00 0.00 0.00 8062.75 1129.17 0.00
21 5700.00 0.00 0.00 43470.38 0.00 0.00
22 0.00 0.00 0.00 0.00 0.00 0.00
23 0.00 0.00 0.00 0.00 0.00 0.00
24 0.00 0.00 0.00 0.00 0.00 0.00
25 3133.33 0.00 0.00 8447.35 2696.56 0.00
26 0.00 0.00 0.00 31713.65 5686.00 0.00
26.1
26.2
26.3
26.4
26.5
26.6
26.7
27 1806.42 0.00 0.00 31781.36 4028.27 78214.29
28 8312.50 0.00 0.00 14366.27 5900.50 0.00
29 0.00 0.00 0.00 0.00 0.00 0.00
30 116.48 0.00 0.00 26012.81 0.00 0.00
31 0.00 0.00 0.00 0.00 0.00 0.00
32 0.00 0.00 0.00 0.00 0.00 0.00
33 0.00 0.00 0.00 0.00 0.00 0.00
34 1704.67 0.00 8333.33 22782.55 3762.00 0.00
35 0.00 0.00 0.00 0.00 0.00 0.00
36 3608.83 0.00 11990.00 9086.55 3616.33 0.00
37 337.03 0.00 9000.00 15231.49 1750.00 0.00
38 882.00 0.00 5431.00 46490.75 3840.92 0.00
39 0.00 0.00 0.00 0.00 0.00 0.00
40 3895.83 0.00 0.00 6764.87 1175.22 0.00
41 0.00 0.00 0.00 0.00 0.00 0.00
42 1054.75 0.00 7172.30 7697.79 1820.00 0.00
43 565.05 0.00 3125.00 5279.65 1299.25 0.00
44 1525.00 0.00 0.00 9261.42 1161.83 0.00
45 0.00 0.00 0.00 0.00 0.00 0.00
46 6982.00 0.00 2111.50 17536.42 2807.33 0.00
47 1583.42 0.00 6700.34 16012.37 4760.51 0.00
48 1266.67 0.00 0.00 8751.53 1382.92 0.00
49 1838.41 0.00 9192.16 5593.85 813.25 0.00
50 0.00 0.00 0.00 0.00 0.00 0.00
51 0.00 0.00 0.00 0.00 0.00 0.00
52 0.00 0.00 0.00 0.00 0.00 0.00
53 0.00 0.00 0.00 15219.17 161.67 0.00
54 0.00 0.00 0.00 0.00 0.00 0.00
55 1573.67 0.00 6692.42 11073.82 0.00 0.00
56 1979.17 0.00 0.00 3204.98 989.39 0.00
57 0.00 0.00 0.00 0.00 0.00 0.00
58 1417.00 0.00 0.00 10234.93 2262.08 0.00
59 1998.25 0.00 0.00 3478.72 2062.84 0.00
60 772.53 0.00 5150.00 9166.67 754.83 0.00
61 2460.42 0.00 6496.50 8404.56 1993.71 0.00
62 1667.00 0.00 0.00 2180.43 745.33 0.00
63 3646.00 0.00 0.00 6972.38 2383.51 0.00
64 2666.67 0.00 0.00 19408.49 3246.33 0.00
65 2968.08 0.00 0.00 4417.33 2184.25 0.00
66 425.00 0.00 3700.00 4262.00 693.58 0.00
67 204.92 0.00 1350.00 2530.50 481.58 0.00
68 369.50 0.00 1962.00 10537.69 3935.70 0.00
69 1463.25 0.00 4651.25 4674.19 1750.67 0.00
70 0.00 0.00 0.00 7722.50 1420.25 0.00
71 0.00 0.00 0.00 6301.30 1120.83 0.00
72 0.00 0.00 0.00 0.00 0.00 0.00
73 1070.00 0.00 3759.00 4500.44 942.83 0.00
74 287.00 0.00 2083.33 3261.58 1384.08 0.00
75 3687.50 0.00 0.00 6522.24 3106.45 0.00
76 2306.13 0.00 0.00 18418.60 2765.79 0.00
77 224.08 0.00 1625.00 2837.36 1141.83 0.00
78 0.00 0.00 0.00 0.00 0.00 0.00
79 1895.83 0.00 0.00 3915.40 760.59 0.00
80 2651.34 0.00 0.00 12945.83 4348.25 0.00
81 139.50 0.00 2100.00 12774.81 666.67 0.00
82 2083.33 0.00 0.00 1802.14 1017.57 0.00
83 0.00 0.00 0.00 0.00 1807.87 0.00
84 3833.33 0.00 0.00 6745.06 4884.98 0.00
85 0.00 0.00 0.00 2932.87 1631.50 0.00
86 0.00 0.00 0.00 9199.96 2078.08 0.00
87 173.68 0.00 1389.42 6144.14 1050.25 0.00
88 580.00 0.00 0.00 2258.74 680.58 0.00
89 1086.17 0.00 1832.25 6193.44 0.00 0.00
90 3125.00 0.00 0.00 4929.21 1996.92 0.00
91 720.00 0.00 2500.00 7280.81 874.00 0.00
92 0.00 0.00 0.00 18643.39 0.00 0.00
93 0.00 0.00 0.00 0.00 0.00 0.00
94 689.17 0.00 0.00 3610.55 550.00 0.00
95 1177.00 0.00 3255.00 4330.38 500.07 0.00
95.1
95.2
96 2500.00 0.00 0.00 4996.59 2080.00 0.00
97 0.00 0.00 0.00 0.00 0.00 0.00
98 694.83 0.00 1148.25 5234.77 0.00 0.00
99 317.00 0.00 0.00 3553.30 0.00 0.00
100 2916.67 0.00 0.00 5280.17 1980.53 0.00
101 168.23 0.00 0.00 1653.88 550.00 0.00
102 864.00 0.00 0.00 2224.99 1204.49 0.00
103 461.25 0.00 2152.50 1359.60 1330.51 0.00
104 381.63 0.00 2544.17 4833.33 663.33 0.00
105 0.00 0.00 0.00 0.00 0.00 0.00
106 338.17 0.00 2130.58 4279.49 1033.85 0.00
107 742.50 0.00 5197.92 9188.89 1383.67 0.00
108 3000.00 0.00 0.00 1652.56 2492.96 0.00
109 0.00 0.00 0.00 0.00 0.00 0.00
110 791.67 0.00 0.00 1514.38 275.53 0.00
111 249.83 0.00 1249.08 2344.70 2383.15 0.00
112 676.00 0.00 3379.00 5431.25 1053.17 0.00
113 0.00 0.00 0.00 0.00 0.00 0.00
114 2166.67 0.00 0.00 6517.24 2606.58 0.00
115 0.00 0.00 0.00 0.00 0.00 0.00
116 0.00 0.00 2128.92 5026.93 525.00 0.00
117 3625.00 0.00 0.00 5710.75 2630.94 0.00
118 1604.17 0.00 0.00 7540.41 1514.00 0.00
119 494.05 0.00 0.00 2931.15 550.00 0.00
120 0.00 0.00 0.00 1111.84 606.25 0.00
121 1800.00 0.00 0.00 3691.78 1464.25 0.00
122 750.00 0.00 0.00 1187.51 269.73 0.00
123 93.75 0.00 0.00 0.00 0.00 0.00
124 0.00 0.00 0.00 2974.42 206.41 0.00
125 380.00 0.00 1226.00 3604.65 652.98 0.00
126 313.00 0.00 2089.00 2969.92 712.92 0.00
127 832.13 0.00 2419.42 1111.73 865.17 0.00
128 5188.00 0.00 0.00 6606.36 5582.74 0.00
129 459.80 0.00 0.00 2673.09 1468.17 0.00
130 0.00 0.00 0.00 5280.00 668.50 0.00
131 336.76 0.00 2245.00 3850.00 742.33 0.00
132 478.17 0.00 3187.50 2574.20 623.17 0.00
133 878.00 0.00 5211.00 3140.17 566.23 0.00
134 1081.08 0.00 0.00 4615.23 568.45 0.00
135 1228.83 0.00 0.00 0.00 0.00 0.00
136 687.50 0.00 0.00 2760.73 546.83 0.00
137 1200.00 0.00 0.00 4008.95 1093.25 0.00
138 343.07 0.00 0.00 6723.70 550.00 0.00
139 262.50 0.00 1747.42 2468.90 604.78 0.00
140 175.67 0.00 1675.33 4547.25 709.37 0.00
141 636.83 0.00 0.00 2634.20 204.25 0.00
142 743.92 0.00 2645.50 2183.04 3169.05 0.00
143 1041.67 0.00 0.00 2040.60 418.46 0.00
144 0.00 0.00 0.00 14383.81 0.00 0.00
145 255.00 0.00 1950.00 1579.72 190.58 0.00
146 1604.17 0.00 0.00 4594.55 1290.50 0.00
147 186.84 0.00 979.84 2554.88 492.70 0.00
148 129.75 0.00 856.25 3442.49 442.66 0.00
149 448.33 0.00 0.00 2588.88 436.89 0.00
150 733.75 0.00 2730.50 2484.42 440.79 0.00
151 833.34 0.00 0.00 3531.28 0.00 0.00
152 127.16 0.00 699.58 1289.08 244.57 0.00
153 458.34 0.00 2716.50 4010.21 222.91 0.00
154 911.25 0.00 0.00 3531.81 754.26 0.00
155 278.56 0.00 1392.81 1486.83 1154.25 0.00
156 679.42 0.00 0.00 1868.72 550.00 0.00
157 0.00 0.00 0.00 0.00 0.00 0.00
158 833.33 0.00 0.00 1218.75 285.33 0.00
159 695.67 0.00 0.00 1733.95 520.00 0.00
160 252.42 0.00 1514.40 2522.88 530.00 0.00
161 1833.33 0.00 0.00 3916.67 3383.02 0.00
162 1016.00 0.00 2032.67 4360.75 997.00 0.00
163 0.00 0.00 0.00 3383.33 0.00 0.00
164 1232.17 0.00 0.00 1279.98 1494.57 0.00
164.1
164.2
164.3
165 68.34 0.00 683.00 1943.98 336.67 0.00
166 0.00 0.00 0.00 9760.89 0.00 0.00
167 235.75 0.00 0.00 3824.14 550.00 0.00
168 632.33 0.00 0.00 1824.33 450.67 0.00
169 0.00 0.00 0.00 0.00 0.00 0.00
170 396.83 0.00 0.00 3732.72 550.00 0.00
171 666.67 0.00 0.00 1393.02 298.80 0.00
172 1233.33 0.00 0.00 2149.31 1231.75 0.00
173 403.75 0.00 2019.00 3430.58 650.58 0.00
174 286.92 0.00 1338.75 590.46 1026.74 0.00
175 0.00 0.00 1175.00 3682.95 465.06 0.00
176 362.50 0.00 0.00 1775.58 384.00 0.00
177 1614.42 0.00 0.00 2689.41 1203.80 0.00
178 489.75 0.00 2449.00 2733.33 852.92 0.00
179 583.33 0.00 0.00 1408.66 637.01 0.00
180 625.00 0.00 0.00 1266.87 323.68 0.00
181 716.75 0.00 0.00 2410.73 368.94 0.00
182 140.83 0.00 0.00 0.00 377.69 0.00
183 908.95 0.00 0.00 2460.33 545.00 0.00
184 708.33 0.00 0.00 1019.75 343.20 0.00
185 225.75 0.00 1053.50 200.67 641.94 0.00
186 500.00 0.00 0.00 2232.34 1168.68 0.00
187 479.17 0.00 0.00 1060.24 211.06 0.00
188 210.75 0.00 983.33 900.28 1529.75 0.00
189 729.17 0.00 0.00 1318.48 317.97 0.00
190 108.33 0.00 681.75 3663.42 807.67 0.00
191 500.00 0.00 0.00 924.80 196.26 0.00
192 577.00 0.00 1500.16 5192.81 865.83 0.00
193 691.67 0.00 0.00 1013.68 845.10 0.00
194 256.25 0.00 1400.25 2751.15 520.35 0.00
195 1250.00 0.00 0.00 1278.42 909.31 0.00
196 1972.77 0.00 0.00 2510.22 2719.84 0.00
197 0.00 0.00 0.00 2187.54 278.72 0.00
198 500.00 0.00 0.00 879.89 270.09 0.00
199 174.34 0.00 590.42 1249.35 387.92 0.00
200 416.67 0.00 0.00 964.37 165.23 0.00
201 137.50 0.00 883.42 1219.92 325.61 0.00
202 790.42 0.00 0.00 1841.72 304.20 0.00
203 770.83 0.00 0.00 973.00 515.29 0.00
204 2354.17 0.00 2354.17 2779.89 2065.50 0.00
205 395.83 0.00 0.00 814.63 213.64 0.00
206 2000.00 0.00 0.00 4524.54 1855.16 0.00
207 692.83 0.00 0.00 2432.87 378.13 0.00
208 0.00 0.00 0.00 0.00 0.00 0.00
209 87.50 0.00 366.25 1356.33 223.69 0.00
210 514.42 0.00 0.00 1762.52 339.65 0.00
211 0.00 0.00 0.00 1164.63 371.02 0.00
212 666.67 0.00 0.00 1242.93 458.58 0.00
213 617.92 0.00 0.00 1652.19 408.81 0.00
214 490.84 0.00 2168.67 1962.39 312.78 0.00
215 562.50 0.00 0.00 813.10 298.62 0.00
216 500.00 0.00 0.00 797.65 230.59 0.00
217 737.75 0.00 3149.00 3739.74 683.63 0.00
218 746.70 0.00 1866.67 2483.66 1289.58 0.00
219 545.42 0.00 0.00 820.05 311.13 0.00
220 166.50 0.00 0.00 1294.79 451.38 0.00
221 833.33 0.00 0.00 867.22 754.17 0.00
222 145.17 0.00 684.67 167.07 481.09 0.00
223 600.00 0.00 0.00 1617.81 560.33 0.00
224 0.00 0.00 0.00 9291.63 0.00 0.00
225 270.83 0.00 0.00 662.75 149.53 0.00
226 90.50 0.00 451.33 2340.00 481.26 0.00
227 213.00 0.00 1128.42 1808.32 327.95 0.00
228 416.67 0.00 0.00 1079.44 139.19 0.00
229 387.50 0.00 0.00 1489.72 248.99 0.00
230 0.00 0.00 0.00 1078.75 416.17 0.00
231 310.92 0.00 753.92 301.26 141.27 0.00
232 395.83 0.00 0.00 1321.38 353.77 0.00
Remaining
Interest Final Amortization
Defeasance Accrual Loan Maturity Term for
Loan # Grace Period Lockbox In-place Property Type Permitted Period Group Date Balloon Loans
------ ------------ ---------------- ------------- --------- ------ ----- ---- -------------
1 3 (Once every 12 Yes Retail Yes Actual/360 1 360
months)
2 5 Yes Hotel Yes Actual/360 1
2.1 5 Yes Hotel Yes Actual/360 1
2.2 5 Yes Hotel Yes Actual/360 1
2.3 5 Yes Hotel Yes Actual/360 1
3 5 No Hotel Yes Actual/360 1 300
4 5 Yes Retail Yes Actual/360 1 360
5 5 Yes Office Yes Actual/360 1
6 5 No Office Yes Actual/360 1 360
7 0 No Office Yes Actual/360 1 360
8 5 Yes Retail Yes Actual/360 1 07/01/24 360
9 10 Yes Office Yes Actual/360 1 360
10 5 No Office No Actual/360 1
11 5 No Multifamily Yes Actual/360 1 360
12 0 No Office No 30/360 1
13 0 Yes Retail Yes Actual/360 1 360
14 0 Yes Multifamily Yes Actual/360 2 360
15 5 Yes Office Yes Actual/360 1 360
16 10 No Office Yes Actual/360 1 360
17 5 Yes Office Yes Actual/360 1
18 7 No Office Yes Actual/360 1 360
19 5 Yes Retail Yes Actual/360 1 360
20 0 No Manufactured Housing Yes Actual/360 1
21 0 No Multifamily Yes Actual/360 2
22 0 No Office Yes Actual/360 1
23 10 No Office Yes Actual/360 1 360
24 10 No Office Yes Actual/360 1 360
25 0 No Multifamily Yes Actual/360 2 360
26 7 No Self Storage No Actual/360 1
26.1 7 No Self Storage No Actual/360 1
26.2 7 No Self Storage No Actual/360 1
26.3 7 No Self Storage No Actual/360 1
26.4 7 No Self Storage No Actual/360 1
26.5 7 No Self Storage No Actual/360 1
26.6 7 No Self Storage No Actual/360 1
26.7 7 No Self Storage No Actual/360 1
27 5 Yes Office Yes Actual/360 1 08/01/35 360
28 0 Yes Multifamily Yes Actual/360 2 360
29 0 No Office No Actual/360 1 360
30 7 No Office Yes Actual/360 1 360
31 10 No Office Yes Actual/360 1 360
32 0 No Retail No 30/360 1
33 0 No Retail No 30/360 1
34 10 No Office Yes Actual/360 1 360
35 7 Yes Retail Yes Actual/360 1 360
36 7 No Office Yes Actual/360 1 360
37 7 No Office Yes Actual/360 1 360
38 7 Yes Office Yes Actual/360 1 360
39 0 No Retail No 30/360 1
40 0 No Multifamily Yes Actual/360 2 360
41 10 No Office Yes Actual/360 1 360
42 5 No Office Yes Actual/360 1 360
43 7 No Retail Yes Actual/360 1 360
44 0 No Manufactured Housing Yes Actual/360 2 360
45 7 No Retail Yes Actual/360 1 360
46 0 Yes Industrial Yes Actual/360 1 360
47 5 No Office Yes Actual/360 1 360
48 0 No Multifamily Yes Actual/360 1 360
49 0 Yes Retail Yes Actual/360 1 360
50 10 No Office Yes Actual/360 1 360
51 7 No Hotel Yes Actual/360 1 360
52 10 No Office Yes Actual/360 1 360
53 0 No Retail Yes Actual/360 1 360
54 5 No Retail No 30/360 1
55 5 No Office Yes Actual/360 1 360
56 0 No Multifamily Yes Actual/360 2 360
57 10 No Office Yes Actual/360 1 360
58 7 No Multifamily Yes Actual/360 2 360
59 5 No Self Storage Yes Actual/360 1 300
60 0 No Retail Yes Actual/360 1 360
61 5 No Retail Yes Actual/360 1 300
62 5 No Multifamily Yes Actual/360 1 360
63 5 No Multifamily Yes Actual/360 2 360
64 10 No Multifamily Yes Actual/360 2 360
65 7 No Multifamily Yes Actual/360 2 360
66 7 No Retail Yes Actual/360 1 355
67 0 Yes Retail Yes Actual/360 1 360
68 5 No Retail Yes Actual/360 1 300
69 5 No Retail Yes Actual/360 1 360
70 0 No Manufactured Housing Yes Actual/360 2 360
71 0 No Manufactured Housing Yes Actual/360 1
72 0 No Retail No 30/360 1
73 7 No Office Yes Actual/360 1 360
74 5 No Retail Yes Actual/360 1 360
75 7 No Multifamily No Actual/360 2 324
76 5 No Office No Actual/360 1
77 7 Yes Office Yes Actual/360 1 360
78 0 No Retail No 30/360 1
79 0 No Multifamily Yes Actual/360 2 360
80 7 No Multifamily Yes Actual/360 2 360
81 7 No Office Yes Actual/360 1 360
82 0 No Multifamily Yes Actual/360 2 360
83 5 No Multifamily Yes Actual/360 2 360
84 5 No Multifamily Yes Actual/360 2 360
85 7 No Retail Yes Actual/360 1 360
86 0 No Manufactured Housing Yes Actual/360 2 360
87 0 No Retail Yes Actual/360 1 360
88 7 No Manufactured Housing Yes Actual/360 2 360
89 7 No Industrial Yes Actual/360 1 360
90 0 No Multifamily Yes Actual/360 2 360
91 7 No Industrial Yes Actual/360 1 360
92 7 No Retail Yes Actual/360 1 360
93 5 No Retail No 30/360 1
94 5 No Self Storage Yes Actual/360 1 360
95 5 No Industrial Yes Actual/360 1 360
95.1 Industrial 1
95.2 Industrial 1
96 5 No Multifamily Yes Actual/360 2 360
97 7 No Retail Yes Actual/360 1 360
98 7 No Industrial Yes Actual/360 1 360
99 5 No Office Yes Actual/360 1 360
100 0 No Multifamily Yes Actual/360 2 360
101 5 No Self Storage Yes Actual/360 1 360
102 5 No Multifamily No Actual/360 2
103 5 No Retail Yes Actual/360 1 360
104 0 No Retail Yes Actual/360 1 360
105 5 No Retail Yes Actual/360 1 360
106 5 No Office Yes Actual/360 1 360
107 0 No Retail Yes Actual/360 1 360
108 5 No Multifamily Yes Actual/360 2 360
109 7 No Multifamily Yes Actual/360 2 360
110 0 No Multifamily Yes Actual/360 2 360
111 0 No Retail Yes Actual/360 1 360
112 0 No Retail Yes Actual/360 1 360
113 5 No Retail Yes Actual/360 1 360
114 0 No Multifamily Yes Actual/360 2 360
115 5 No Retail Yes Actual/360 1 360
116 0 No Retail Yes Actual/360 1 360
117 5 No Multifamily Yes Actual/360 2 300
118 7 No Industrial Yes Actual/360 1 360
119 5 No Self Storage Yes Actual/360 1 360
120 0 No Retail Yes Actual/360 1 360
121 7 No Multifamily Yes Actual/360 2 360
122 0 No Multifamily Yes Actual/360 2 360
123 5 Yes Retail Yes Actual/360 1 300
124 7 No Retail Yes Actual/360 1 360
125 0 No Retail Yes Actual/360 1 360
126 0 No Retail Yes Actual/360 1 360
127 10 No Retail Yes Actual/360 1 360
128 5 No Multifamily Yes Actual/360 2 300
129 7 No Industrial Yes Actual/360 1 360
130 0 No Manufactured Housing Yes Actual/360 1 360
131 0 No Retail Yes Actual/360 1 360
132 7 No Retail Yes Actual/360 1 360
133 0 No Office Yes Actual/360 1 360
134 5 No Self Storage Yes Actual/360 1 360
135 5 No Retail Yes Actual/360 1 360
136 0 No Multifamily Yes Actual/360 2 360
137 7 No Multifamily Yes Actual/360 2 360
138 5 No Self Storage Yes Actual/360 1 360
139 0 No Office Yes Actual/360 1 360
140 5 No Office Yes Actual/360 1 360
141 0 Yes Retail No Actual/360 1 360
142 5 No Office Yes Actual/360 1 360
143 0 No Multifamily Yes Actual/360 2 360
144 7 No Retail Yes Actual/360 1
145 0 No Office Yes Actual/360 1 360
146 0 No Multifamily No Actual/360 2 360
147 5 No Retail No Actual/360 1 360
148 5 No Retail Yes Actual/360 1 360
149 5 No Self Storage Yes Actual/360 1 360
150 5 No Office Yes Actual/360 1 240
151 5 No Multifamily No Actual/360 2 300
152 5 No Retail Yes Actual/360 1 360
153 5 No Office Yes Actual/360 1 360
154 5 No Self Storage Yes Actual/360 1 360
155 7 No Retail Yes Actual/360 1 360
156 5 No Self Storage Yes Actual/360 1 360
157 5 No Retail Yes Actual/360 1 300
158 0 No Multifamily Yes Actual/360 2 360
159 5 No Self Storage No Actual/360 1 300
160 7 No Office Yes Actual/360 1 360
161 0 No Multifamily Yes Actual/360 2 360
162 0 No Industrial Yes Actual/360 1 240
163 5 No Self Storage Yes Actual/360 1 360
164 5 No Self Storage Yes Actual/360 1 360
164.1 Self Storage 1
164.2 Self Storage 1
164.3 Self Storage 1
165 0 No Retail Yes Actual/360 1 360
166 7 No Retail Yes Actual/360 1
167 5 No Self Storage Yes Actual/360 1 360
168 5 No Self Storage No Actual/360 1 300
169 5 No Retail Yes Actual/360 1 360
170 5 No Self Storage Yes Actual/360 1 360
171 0 No Multifamily Yes Actual/360 2 360
172 7 No Multifamily Yes Actual/360 2 360
173 0 No Office Yes Actual/360 1 360
174 5 No Retail Yes Actual/360 1 360
175 7 Yes Retail Yes Actual/360 1 360
176 7 No Manufactured Housing Yes Actual/360 2 360
177 5 No Multifamily Yes Actual/360 2 360
178 0 Yes Industrial Yes Actual/360 1 360
179 0 No Multifamily Yes Actual/360 2 360
180 0 No Multifamily Yes Actual/360 2 360
181 5 No Self Storage Yes Actual/360 1 360
182 5 No Retail Yes Actual/360 1 300
183 7 No Industrial Yes Actual/360 1 360
184 0 No Multifamily Yes Actual/360 2 360
185 5 No Retail Yes Actual/360 1 360
186 0 No Industrial Yes Actual/360 1 360
187 0 No Multifamily Yes Actual/360 2 360
188 5 No Retail Yes Actual/360 1 360
189 0 No Multifamily Yes Actual/360 2 360
190 7 No Retail Yes Actual/360 1 360
191 0 No Multifamily Yes Actual/360 2 360
192 7 No Industrial Yes Actual/360 1 240
193 5 No Manufactured Housing Yes Actual/360 2 360
194 7 No Retail Yes Actual/360 1 300
195 5 No Multifamily Yes Actual/360 2 360
196 7 No Multifamily Yes Actual/360 2 360
197 5 No Retail Yes Actual/360 1 300
198 0 No Multifamily Yes Actual/360 2 360
199 5 No Retail Yes Actual/360 1 360
200 0 No Multifamily Yes Actual/360 2 360
201 5 No Office Yes Actual/360 1 360
202 5 No Multifamily Yes Actual/360 2 360
203 0 No Multifamily Yes Actual/360 2 360
204 0 No Multifamily Yes Actual/360 2 360
205 0 No Multifamily Yes Actual/360 2 360
206 5 No Multifamily Yes Actual/360 2 300
207 5 No Self Storage Yes Actual/360 1 360
208 7 No Retail Yes Actual/360 1 360
209 5 No Retail Yes Actual/360 1 360
210 5 No Self Storage Yes Actual/360 1 360
211 5 No Retail Yes Actual/360 1 360
212 0 No Multifamily Yes Actual/360 2 360
213 5 No Self Storage Yes Actual/360 1 360
214 5 No Office Yes Actual/360 1 300
215 0 No Multifamily Yes Actual/360 2 360
216 0 No Multifamily Yes Actual/360 2 360
217 5 No Office Yes Actual/360 1 120
218 7 No Office No Actual/360 1 360
219 5 No Self Storage Yes Actual/360 1 300
220 5 No Office Yes Actual/360 1 360
221 5 No Multifamily Yes Actual/360 2 360
222 5 No Retail Yes Actual/360 1 180
223 7 No Multifamily Yes Actual/360 2 360
224 7 No Retail Yes Actual/360 1
225 0 No Multifamily Yes Actual/360 2 360
226 5 No Retail Yes Actual/360 1 341
227 5 No Office Yes Actual/360 1 300
228 0 No Multifamily Yes Actual/360 2 360
229 5 No Manufactured Housing No Actual/360 2 360
230 0 No Manufactured Housing Yes Actual/360 1 300
231 5 No Retail Yes Actual/360 1 360
232 5 No Multifamily Yes Actual/360 2 360
EXHIBIT C
FORM OF INVESTMENT REPRESENTATION LETTER
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group - JPMorgan 2005-LDP3
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2005-LDP3
-------------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement, dated as of June 1, 2005 (the "Pooling and Servicing
Agreement"), by and among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., as Depositor, GMAC Commercial Mortgage Corporation, as Master Servicer,
CWCapital Asset Management LLC, as Special Servicer, Xxxxx Fargo Bank, N.A., as
Trustee, and LaSalle Bank National Association, as Paying Agent, on behalf of
the holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2005-LDP3 (the
"Certificates") in connection with the transfer by _________________ (the
"Seller") to the undersigned (the "Purchaser") of $_______________ aggregate
Certificate Balance of Class ___ Certificates (the "Certificate"). Capitalized
terms used and not otherwise defined herein shall have the respective meanings
ascribed to such terms in the Pooling and Servicing Agreement.
In connection with such transfer, the Purchaser hereby represents
and warrants to you and the addressees hereof as follows:
1. Check one of the following:*
[_] The Purchaser is not purchasing a Class S, Class R or Class LR
Certificate and the Purchaser is an institutional "accredited
investor" (an entity meeting the requirements of Rule 501(a)(1),
(2), (3) or (7) of Regulation D under the Securities Act of 1933, as
amended (the "Securities Act")) and has such knowledge and
experience in financial and business matters as to be capable of
evaluating the merits and risks of its investment in the
Certificates, and the Purchaser and any accounts for which it is
acting are each able to bear the economic risk of the Purchaser's or
such account's investment. The Purchaser is acquiring the
Certificates purchased by it for its own account or for one or more
accounts (each of which is an "institutional accredited investor")
as to each of which the Purchaser exercises sole investment
discretion. The Purchaser hereby undertakes to reimburse the Trust
Fund for any costs incurred by it in connection with this transfer.
[_] The Purchaser is a "qualified institutional buyer" within the
meaning of Rule 144A ("Rule 144A") promulgated under the Securities
Act of 1933, as amended (the "Securities Act"). The Purchaser is
aware that the transfer is being made in reliance on Rule 144A, and
the Purchaser has had the opportunity to obtain the information
required to be provided pursuant to paragraph (d)(4)(i) of Rule
144A.
2. The Purchaser's intention is to acquire the Certificate (a) for
investment for the Purchaser's own account or (b) for resale (i) to "qualified
institutional buyers" in transactions under Rule 144A, and not in any event with
the view to, or for resale in connection with, any distribution thereof, (ii)
(other than with respect to a Class S Certificate or a Residual Certificate) to
institutional "accredited investors" meeting the requirements of Rule 501(a)(1),
(2), (3) or (7) of Regulation D promulgated under the Securities Act or (iii)
(other than with respect to a Class S Certificate or a Residual Certificate)
pursuant to any other exemption from the registration requirements of the
Securities Act, subject in the case of clauses (ii) and (iii) above to (w) the
receipt by the Certificate Registrar of a letter substantially in the form
hereof, (x) the receipt by the Certificate Registrar of an opinion of counsel
acceptable to the Certificate Registrar that such reoffer, resale, pledge or
transfer is in compliance with the Securities Act, (y) the receipt by the
Certificate Registrar of such other evidence acceptable to the Certificate
Registrar that such reoffer, resale, pledge or transfer is in compliance with
the Securities Act and other applicable laws and (z) a written undertaking to
reimburse the Trust for any costs incurred by it in connection with the proposed
transfer. The Purchaser understands that the Certificate (and any subsequent
Certificate) has not been registered under the Securities Act, by reason of a
specified exemption from the registration provisions of the Securities Act which
depends upon, among other things, the bona fide nature of the Purchaser's
investment intent (or intent to resell to only certain investors in certain
exempted transactions) as expressed herein.
3. The Purchaser has reviewed the Private Placement Memorandum
relating to the Certificates (the "Private Placement Memorandum") and the
agreements and other materials referred to therein and has had the opportunity
to ask questions and receive answers concerning the terms and conditions of the
transactions contemplated by the Private Placement Memorandum.
4. The Purchaser acknowledges that the Certificate (and any
Certificate issued on transfer or exchange thereof) has not been registered or
qualified under the Securities Act or the securities laws of any State or any
other jurisdiction, and that the Certificate cannot be resold unless it is
registered or qualified thereunder or unless an exemption from such registration
or qualification is available.
5. The Purchaser hereby undertakes to be bound by the terms and
conditions of the Pooling and Servicing Agreement in its capacity as an owner of
a Certificate or Certificates, as the case may be (each, a "Certificateholder"),
in all respects as if it were a signatory thereto. This undertaking is made for
the benefit of the Trust, the Certificate Registrar and all Certificateholders
present and future.
6. The Purchaser will not sell or otherwise transfer any portion of
the Certificate or Certificates, except in compliance with Section 5.02 of the
Pooling and Servicing Agreement.
7. Check one of the following:**
The Purchaser is a U.S. Person (as defined below) and it has
[_] attached hereto an Internal Revenue Service ("IRS") Form W-9 (or
successor form).
[_] The Purchaser is not a U.S. Person and under applicable law in
effect on the date hereof, no taxes will be required to be withheld
by the Paying Agent (or its agent) with respect to distributions to
be made on the Certificate. The Purchaser has attached hereto [(i) a
duly executed IRS Form W-8BEN (or successor form), which identifies
such Purchaser as the beneficial owner of the Certificate and states
that such Purchaser is not a U.S. Person, (ii) IRS Form W-8IMY (with
all appropriate attachments) or (iii)]*** two duly executed copies
of IRS Form W-8ECI (or successor form), which identify such
Purchaser as the beneficial owner of the Certificate and state that
interest and original issue discount on the Certificate and
Permitted Investments is, or is expected to be, effectively
connected with a U.S. trade or business. The Purchaser agrees to
provide to the Certificate Registrar updated [IRS Form W-8BEN, IRS
Form W-8IMY or]*** IRS Form W-8ECI, [as the case may be,]*** any
applicable successor IRS forms, or such other certifications as the
Certificate Registrar may reasonably request, on or before the date
that any such IRS form or certification expires or becomes obsolete,
or promptly after the occurrence of any event requiring a change in
the most recent IRS form of certification furnished by it to the
Certificate Registrar.
For this purpose, "U.S. Person" means a citizen or resident of the United
States, a corporation or partnership (except to the extent provided in
applicable Treasury Regulations) or other entity created or organized in, or
under the laws of, the United States, any State thereof or the District of
Columbia, including any entity treated as a corporation or partnership for
federal income tax purposes, an estate whose income is subject to United States
federal income tax regardless of its source or a trust if a court within the
United States is able to exercise primary supervision over the administration of
such trust, and one or more such U.S. Persons have the authority to control all
substantial decisions of such trust (or, to the extent provided in applicable
Treasury Regulations, certain trusts in existence on August 20, 1996 which are
eligible to elect to be treated as U.S. Persons).
8. Please make all payments due on the Certificates:****
(a) by wire transfer to the following account at a bank or entity
in New York, New York, having appropriate facilities therefor:
Bank:_________________________________________________
ABA #:________________________________________________
Account #:____________________________________________
Attention:____________________________________________
(b) by mailing a check or draft to the following address:
____________________________________________________________
____________________________________________________________
____________________________________________________________
9. If the Purchaser is purchasing a Class R or Class LR Certificate,
the Purchaser is not a partnership (including any entity treated as a
partnership for U.S. federal income tax purposes), any interest in which is
owned, directly or indirectly, through one or more partnerships, trusts or other
pass-through entities by a non-U.S. Person.
Very truly yours,
_________________________________________
[The Purchaser]
By:___________________________________
Name:
Title:
Dated:
------------
* Purchaser must include one of the following two certifications.
** Each Purchaser must include one of the two alternative certifications.
*** Does not apply to a transfer of Class R or Class LR Certificates.
**** Only to be filled out by Purchasers of Definitive Certificates. Please
select (a) or (b). For holders of Definitive Certificates, wire transfers are
only available if such holder's Definitive Certificates have an aggregate
Certificate Balance or Notional Amount, as applicable, of at least U.S.
$5,000,000.
EXHIBIT D-1
FORM OF TRANSFER AFFIDAVIT
AFFIDAVIT PURSUANT TO SECTION
860E(e)(4) OF THE INTERNAL
REVENUE CODE OF 1986, AS
AMENDED
STATE OF )
) ss:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That [he] [she] is [Title of Officer] of [Name of Transferee]
(the "Transferee"), a [description of type of entity] duly organized and
existing under the laws of the [State of __________] [United States], on behalf
of which [he/she] makes this affidavit.
2. That the Transferee's Taxpayer Identification Number is [ ].
3. That the Transferee of a X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2005-LDP3, Class [R] [LR] Certificate (the "Class [R] [LR] Certificate") is not
a Disqualified Organization (as defined below) or an agent thereof (including
nominee, middleman or other similar person) (an "Agent"), or an ERISA Prohibited
Holder or a Non-U.S. Person (as defined below). For these purposes, a
"Disqualified Organization" means any of (i) the United States, any State or
political subdivision thereof, any possession of the United States, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and, majority
of its board of directors is not selected by such governmental unit), (ii) a
foreign government, any international organization, or any agency or
instrumentality of any of the foregoing, (iii) any organization (other than
certain farmers' cooperatives described in Section 521 of the Code) which is
exempt from the tax imposed by Chapter 1 of the Code (including the tax imposed
by Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381(a)(2)(C) of the
Code and (v) any other Person so designated by the Master Servicer based upon an
Opinion of Counsel that the holding of an Ownership Interest in a Residual
Certificate by such Person may cause any of the [Upper-Tier REMIC], [the
Lower-Tier REMIC] to fail to qualify as a REMIC, or any Person having an
Ownership Interest in any Class of Certificates (other than such Person) to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a Residual
Certificate to such Person. The terms "United States," "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions. For these purposes, "ERISA Prohibited
Holder" means an employee benefit plan subject to Section 406 of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of
the Code or a governmental plan (as defined in Section 3(32) of ERISA) or a
church plan (as defined in Section 3(33) of ERISA) for which no election has
been made under Section 410(d) of the Code subject to any federal, state or
local law which is, to a material extent, similar to the foregoing provisions of
ERISA or the Code (each a "Plan") or a person acting on behalf of or investing
the assets of such a Plan. For these purposes, "Non-U.S. Person" means any
person other than a U.S. Person (within the meaning of Section 7701(a)(30) of
the Code), unless, with respect to the Transfer of a Residual Certificate, (i)
such person holds such Residual Certificate in connection with the conduct of a
trade or business within the United States and furnishes the Transferor and the
Certificate Registrar with an effective Internal Revenue Service Form W-8ECI or
(ii) the Transferee delivers to both the Transferor and the Certificate
Registrar an opinion of a nationally recognized tax counsel to the effect that
such Transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such Transfer of the Residual
Certificate will not be disregarded for federal income tax purposes; provided,
that a partnership shall be considered a Non-U.S. Person (and clause (i) of this
sentence shall not apply) if any of its interests are owned, directly or
indirectly, through any partnership, trust or other pass-through entity, by any
person that is a Non-U.S. Person.
4. That the Transferee historically has paid its debts as they have
come due and intends to pay its debts as they come due in the future and the
Transferee intends to pay taxes associated with holding the Class [R] [LR]
Certificate as they become due.
5. That the Transferee understands that it may incur tax liabilities
with respect to the Class [R] [LR] Certificate in excess of any cash flow
generated by the Class [R] [LR] Certificate.
6. That the Transferee agrees not to transfer the Class [R] [LR]
Certificate to any Person or entity unless (a) the Transferee has received from
such Person or entity an affidavit substantially in the form of this Transfer
Affidavit and (b) the Transferee provides to the Certificate Registrar a letter
substantially in the form of Exhibit D-2 to the Pooling and Servicing Agreement
certifying that it has no actual knowledge that such Person or entity is a
Disqualified Organization, or an Agent thereof, an ERISA Prohibited Holder or a
Non-U.S. Person and that it has no reason to know that such Person or entity
does not satisfy the requirements set forth in paragraph 4 hereof.
7. That the Transferee agrees to such amendments of the Pooling and
Servicing Agreement, dated August 1, 2005, by and among X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., as Depositor, GMAC Commercial Mortgage
Corporation, as Master Servicer, CWCapital Asset Management, LLC, as Special
Servicer, Xxxxx Fargo Bank, N.A., as Trustee, and LaSalle Bank National
Association, as Paying Agent (the "Pooling and Servicing Agreement"), as may be
required to further effectuate the restrictions on transfer of the Class [R]
[LR] Certificate to such a Disqualified Organization, or an Agent thereof, an
ERISA Prohibited Holder or a Non-U.S. Person. To the extent not defined herein,
the capitalized terms used herein shall have the meanings assigned thereto in
the Pooling and Servicing Agreement.
8. That, if a "tax matters person" is required to be designated with
respect to [the Upper-Tier REMIC], [the Lower-Tier REMIC], the Transferee agrees
to act as "tax matters person" and to perform the functions of "tax matters
person" of [the Upper-Tier REMIC] [the Lower-Tier REMIC] pursuant to Section
10.01(c) of the Pooling and Servicing Agreement, and, in such event, agrees to
the irrevocable designation of the Trustee as the Transferee's agent in
performing the function of "tax matters person."
9. That the Transferee has reviewed, and agrees to be bound by and
to abide by, the provisions of Section 5.02(c) of the Pooling and Servicing
Agreement concerning registration of the transfer and exchange of the Class [R]
[LR] Certificate.
10. That the Transferee will not cause income from the Class [R][LR]
Certificate to be attributable to, a foreign permanent establishment or fixed
base, within the meaning of an applicable income tax treaty, of the Transferee
or any other U.S. person.
11. Check one of the following:
[_] That the present value of the anticipated tax liabilities
associated with holding the Class [R] [LR] Certificate does not exceed the sum
of:
(i) the present value of any consideration given to the
Transferee to acquire such Class [R][LR] Certificate;
(ii) the present value of the expected future distributions on
such Class [R] [LR] Certificate; and
(iii) the present value of the anticipated tax savings
associated with holding such Class [R] [LR] Certificate as the related REMIC
generates losses.
For purposes of this calculation, (i) the Transferee is assumed to
pay tax at the highest rate currently specified in Section 11(b) of the Code
(but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of the
highest rate specified in Section 11(b) of the Code if the Transferee has been
subject to the alternative minimum tax under Section 55 of the Code in the
preceding two years and will compute its taxable income in the current taxable
year using the alternative minimum tax rate) and (ii) present values are
computed using a discount rate equal to the short-term Federal rate prescribed
by Section 1274(d) of the Code for the month of the transfer and the compounding
period used by the Transferee.
[_] That the transfer of the Class [R] [LR] Certificate complies
with U.S. Treasury Regulations Sections 1.860G-1(c)(5) and (6) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in
U.S. Treasury Regulations Sections 1.860E-1(c)(6)(i), as
to which income from Class [R] [LR] Certificate will only
be taxed in the United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the
transfer, the Transferee had gross assets for financial
reporting purposes (excluding any obligation of a person
related to the Transferee within the meaning of U.S.
Treasury Regulation Section 1.860E-1(c)(6)(ii)) in excess
of $100 million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Class [R] [LR]
Certificate only to another "eligible corporation," as
defined in U.S. Treasury Regulations Section
1.860E-1(c)(6)(i), in a transaction that satisfies the
requirements of U.S. Treasury Regulations Sections
1.860G-1(c)(4)(i), (ii) and (iii) and 1.860E-1(c)(5); and
(iv) the Transferee determined the consideration paid to it to
acquire the Class [R] [LR] Certificate based on reasonable
market assumptions (including, but not limited to,
borrowing and investment rates, prepayment and loss
assumptions, expense and reinvestment assumptions, tax
rates and other factors specific to the Transferee) that
it has determined in good faith.
[_] None of the above.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, by its [Title of Officer] this _____ day of __________,
20__.
[NAME OF TRANSFEREE]
By:____________________________________
[Name of Officer]
[Title of Officer]
By:____________________________________
[Name of Officer]
[Title of Officer]
Personally appeared before me the above-named [Name of Officer],
known or proved to me to be the same person who executed the foregoing
instrument and to be the [Title of Officer] of the Transferee, and acknowledged
to me that he [she] executed the same as his [her] free act and deed and the
free act and deed of the Transferee.
Subscribed and sworn before me this ___ day of __________, 20__.
_______________________________________
NOTARY PUBLIC
COUNTY OF _____________________________
STATE OF ______________________________
My commission expires the ___ day of __________, 20__.
EXHIBIT D-2
FORM OF TRANSFEROR LETTER
[Date]
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group - JPMorgan 2005-LDP3
Re: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2005-LDP3
Ladies and Gentlemen:
[Transferor] has reviewed the attached affidavit of [Transferee],
and has no actual knowledge that such affidavit is not true and has no reason to
know that the requirements set forth in paragraphs 3, 4 and 10 thereof are not
satisfied or, after conducting a reasonable investigation of the financial
condition of the transferee, that the information contained in paragraphs 3, 4
and 10 thereof is not true.
Very truly yours,
[Transferor]
____________________________
EXHIBIT E
FORM OF REQUEST FOR RELEASE
__________[Date]
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2005-LDP3
Re: X.X. Xxxxx Commercial Mortgage Securities Corp, Commercial
Mortgage Pass-Through Certificates, Series 2005-LDP3,
REQUEST FOR RELEASE
----------------------------------------------------------
Dear _______________________,
In connection with the administration of the Mortgage Files held by
or on behalf of you as Trustee under a certain Pooling and Servicing Agreement,
dated August 1, 2005 (the "Pooling and Servicing Agreement"), by and among X.X.
Xxxxxx Xxxxx Commercial Mortgage Securities Corp., as Depositor, GMAC Commercial
Mortgage Corporation, as Master Servicer, CWCapital Asset Management LLC, as
Special Servicer, you, as Trustee, and LaSalle Bank National Association, as
Paying Agent, the undersigned hereby requests a release of the Mortgage File (or
the portion thereof specified below) held by or on behalf of you as Trustee with
respect to the following described Mortgage Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting file (or portion thereof):
______1. Mortgage Loan paid in full. The [Master Servicer]
[Special Servicer] hereby certifies that all amounts
received in connection with the Mortgage Loan have been
or will be credited to the Certificate Account pursuant
to the Pooling and Servicing Agreement.
______ 2. The Mortgage Loan is being foreclosed.
______ 3. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan has been paid in full, in which case the Mortgage File (or such
portion thereof) will be retained by us permanently, or unless the Mortgage Loan
is being foreclosed, in which case the Mortgage File (or such portion thereof)
will be returned when no longer required by us for such purpose.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
[MASTER SERVICER] [SPECIAL SERVICER]
By:____________________________________
Name:_______________________________
Title:______________________________
EXHIBIT F
FORM OF ERISA REPRESENTATION LETTER
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group - JPMorgan 2005-LDP3
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series
2005-LDP3
------------------------------------------------------------
Ladies and Gentlemen:
The undersigned (the "Purchaser") proposes to purchase $____________
initial Certificate Balance of X.X. Xxxxxx Chase Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2005-LDP3, Class __
(the "Certificate") issued pursuant to that certain Pooling and Servicing
Agreement, dated August 1, 2005 (the "Pooling and Servicing Agreement"), by and
among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., as depositor
("Depositor"), GMAC Commercial Mortgage Corporation, as master servicer ("Master
Servicer"), CWCapital Asset Management LLC, as special servicer ("Special
Servicer"), Xxxxx Fargo Bank, N.A., as trustee ("Trustee"), and LaSalle Bank
National Association, as paying agent (in such capacity, "Paying Agent").
Capitalized terms used and not otherwise defined herein have the respective
meanings ascribed to such terms in the Pooling and Servicing Agreement.
In connection with such transfer, the undersigned hereby represents
and warrants to you as follows:
1. The Purchaser is not (a) an employee benefit plan subject to the
fiduciary responsibility provisions of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), or Section 4975 of the Internal Revenue Code
of 1986, as amended (the "Code"), or a governmental plan (as defined in Section
3(32) of ERISA) or a church plan (as defined in Section 3(33) of ERISA) for
which no election has been made under Section 410(d) of the Code, subject to any
federal, state or local law ("Similar Law") which is, to a material extent,
similar to the foregoing provisions of ERISA or the Code (each a "Plan") or (b)
a person acting on behalf of or using the assets of any such Plan (including an
entity whose underlying assets include Plan assets by reason of investment in
the entity by such a Plan or Plans and the application of Department of Labor
Regulation ss. 2510.3-101), other than, except in the case of the Class S
Certificates, an insurance company using the assets of its "insurance company
general account" (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption ("PTCE") 95-60) under circumstances whereby the
purchase and holding of Offered Private Certificates by such insurance company
would be exempt from the prohibited transaction provisions of ERISA and the Code
under Sections I and III of PTCE 95-60.
2. Except in the case of the Class S Certificates, which may not be
transferred to a Person that cannot make the representation in paragraph 1
above, the Purchaser understands that if the Purchaser is a Person referred to
in 1(a) or (b) above, such Purchaser is required to provide to the Certificate
Registrar an Opinion of Counsel in form and substance satisfactory to the
Certificate Registrar and the Depositor to the effect that the acquisition and
holding of such Certificate by such purchaser or transferee will not constitute
or result in a non-exempt "prohibited transaction" within the meaning of ERISA,
Section 4975 of the Code or any Similar Law, and will not subject the Paying
Agent, the Certificate Registrar, the Master Servicer, the Special Servicer, the
Dealers or the Depositor to any obligation or liability (including obligations
or liabilities under ERISA, Section 4975 of the Code or any such Similar Law) in
addition to those set forth in the Pooling and Servicing Agreement, which
Opinion of Counsel shall not be at the expense of the Depositor, the Master
Servicer, the Special Servicer, the Paying Agent, the Dealers, the Certificate
Registrar or the Trust Fund.
IN WITNESS WHEREOF, the Purchaser hereby executes this ERISA
Representation Letter on the ___ day of _____________, 20__.
Very truly yours,
_________________________________________
[The Purchaser]
By:___________________________________
Name:
Title:
EXHIBIT G
FORM OF STATEMENT TO CERTIFICATEHOLDERS
[See Annex E to the Prospectus Supplement filed on August 16, 2005]
EXHIBIT H
FORM OF OMNIBUS ASSIGNMENT
[NAME OF CURRENT ASSIGNOR] having an address at [ADDRESS OF CURRENT
ASSIGNOR] (the "Assignor") for good and valuable consideration, the receipt and
sufficiency of which are acknowledged, hereby sells, transfers, assigns,
delivers, sets over and conveys, without recourse, representation or warranty,
express or implied, unto "Xxxxx Fargo Bank, N.A., as Trustee for the registered
holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2005-LDP3" (the "Assignee"), having
an office at 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, Attn:
Corporate Trust (CMBS), X.X. Xxxxxx Commercial Mortgage Securities Corp., Series
2005-LDP3, its successors and assigns, all right, title and interest of the
Assignor in and to:
That certain mortgage and security agreement, deed of trust and
security agreement, deed to secure debt and security agreement, or similar
security instrument (the "Security Instrument"), and that certain Promissory
Note (the "Note"), for each of the Mortgage Loans shown on the Mortgage Loan
Schedule attached hereto as Exhibit B, and that certain assignment of leases and
rents given in connection therewith and all of the Assignor's right, title and
interest in any claims, collateral, insurance policies, certificates of deposit,
letters of credit, escrow accounts, performance bonds, demands, causes of action
and any other collateral arising out of and/or executed and/or delivered in or
to or with respect to the Security Instrument and the Note, together with any
other documents or instruments executed and/or delivered in connection with or
otherwise related to the Security Instrument and the Note.
IN WITNESS WHEREOF, the Assignor has executed this instrument under
seal to be effective as of the [__] day of [_____________], 200[__].
[NAME OF CURRENT ASSIGNOR]
By:______________________________________
Name:
Title:
EXHIBIT I-1
FORM OF REGULATION S TRANSFER CERTIFICATE
DURING RESTRICTED PERIOD
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group - JPMorgan 2005-LDP3
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series
2005-LDP3 Class [__]
------------------------------------------------------------
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02(b) of the
Pooling and Servicing Agreement, dated August 1, 2005 (the "Pooling and
Servicing Agreement"), by and among X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp., as Depositor, GMAC Commercial Mortgage Corporation, as Master
Servicer, CWCapital Asset Management LLC, as Special Servicer, Xxxxx Fargo Bank,
N.A., as Trustee, and LaSalle Bank National Association, as Paying Agent, on
behalf of the holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2005-LDP3, Class __ (the
"Certificates") in connection with the transfer by the undersigned (the
"Transferor") to _________________ (the "Transferee") of $__________________
[Certificate Balance] [Notional Amount]of Certificates, in fully registered form
(each, an "Definitive Certificate"), or a beneficial interest of such aggregate
[Certificate Balance] [Notional Amount] in the Regulation S Book-Entry
Certificate (the "Book-Entry Certificate") maintained by The Depository Trust
Company or its successor as Depositary under the Pooling and Servicing Agreement
(such transferred interest, in either form, being the "Transferred Interest").
In connection with such transfer, the Transferor does hereby certify
that such transfer has been effected in accordance with the transfer
restrictions set forth in the Pooling and Servicing Agreement and the
Certificates and (i) with respect to transfers made in accordance with
Regulation S ("Regulation S") promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), the Transferor does hereby certify that:
(1) the offer of the Transferred Interest was not made to a person
in the United States;
(2) [at the time the buy order was originated, the Transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the Transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the undersigned nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States];*
(3) the transferee is not a U.S. Person within the meaning of Rule
902(o) of Regulation S nor a person acting for the account or
benefit of a U.S. Person, and upon completion of the transaction,
the Transferred Interest will be held with the Depository through
[Euroclear] [Clearstream];**
(4) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable; and
(5) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Master Servicer and the Special Servicer.
[Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
----------------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
** Select appropriate depository.
EXHIBIT I-2
FORM OF REGULATION S TRANSFER CERTIFICATE
AFTER RESTRICTED PERIOD
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group - JPMorgan 2005-LDP3
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Chase Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series
2005-LDP3 Class [__]
------------------------------------------------------------
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02(b) the
Pooling and Servicing Agreement, dated August 1, 2005 (the "Pooling and
Servicing Agreement"), by and among X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., as Depositor, GMAC Commercial Mortgage Corporation, as Master
Servicer, CWCapital Asset Management LLC, as Special Servicer, Xxxxx Fargo Bank,
N.A., as Trustee, and LaSalle Bank National Association, as Paying Agent, on
behalf of the holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2005-LDP3, Class __ (the
"Certificates") in connection with the transfer by the undersigned (the
"Transferor") to _________________ (the "Transferee") of $__________________
[Certificate Balance][Notional Amount] of Certificates, in fully registered form
(each, an "Definitive Certificate"), or a beneficial interest of such aggregate
[Certificate Balance][Notional Amount] in the Regulation S Book-Entry
Certificate (the "Book-Entry Certificate") maintained by The Depository Trust
Company or its successor as Depositary under the Pooling and Servicing Agreement
(such transferred interest, in either form, being the "Transferred Interest").
In connection with such transfer, the Transferor does hereby certify
that such transfer has been effected in accordance with the transfer
restrictions set forth in the Pooling and Servicing Agreement and the
Certificates and (i) with respect to transfers made in accordance with
Regulation S ("Regulation S") promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), the Transferor does hereby certify that:
(1) the offer of the Transferred Interest was not made to a person
in the United States;
(2) [at the time the buy order was originated, the Transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the Transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the undersigned nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States];*
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act,
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Master Servicer and the Special Servicer.
[Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
----------------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
EXHIBIT J
FORM OF PURCHASE OPTION NOTICE
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2005-LDP3
GMAC Commercial Mortgage Corporation
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Portfolio Management Group Re: X.X. Xxxxxx Xxxxx Commercial
Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 0000-XXX0
XxXxxxx Bank National Association,
as Paying Agent
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group - JPMorgan 2005-LDP3
Re: X.X. Xxxxxx Chase Commercial Mortgage Corporation Commercial
Mortgage Pass-Through Certificates, Series 2005-LDP3
------------------------------------------------------------
Ladies and Gentlemen:
The undersigned hereby acknowledges that it is the holder of an
assignable option (the "Purchase Option") to purchase Mortgage Loan number ____
from the Trust Fund, pursuant to Section 3.18 of the pooling and servicing
agreement, dated August 1, 2005 (the "Pooling and Servicing Agreement"), by and
among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., as depositor
("Depositor"), GMAC Commercial Mortgage Corporation, as Master Servicer ("Master
Servicer"), CWCapital Asset Management LLC, as special servicer ("Special
Servicer"), Xxxxx Fargo Bank, N.A., as Trustee ("Trustee"), and LaSalle Bank
National Association, as Paying Agent ("Paying Agent"). Capitalized terms used
herein and not otherwise defined shall have the meaning set forth in the Pooling
and Servicing Agreement.
The undersigned, holder of the Purchase Option (the "Option
Holder"), [is the Controlling Class Certificateholder] [acquired its Purchase
Option from the Controlling Class Certificateholder on ___________] [is the
Special Servicer] [acquired its Purchase Option from the Special Servicer].
The undersigned Option Holder is exercising its Purchase Option at
the cash price of $______________, which amount equals or exceeds the Option
Price, as defined in Section 3.18(a)(ii) of the Pooling and Servicing Agreement.
Within ten (10) Business Days of its receipt of the Master Servicer's notice
confirming that the exercise of its Purchase Option is effective, [the
undersigned Option Holder] [______________, an Affiliate of the undersigned
Option Holder] will deliver the Option Price to or at the direction of the
Master Servicer in exchange for the release of the Mortgage Loan, the related
Mortgaged Property and delivery of the related Mortgage File.
The undersigned Option Holder agrees that it shall prepare and
provide the Master Servicer with such instruments of transfer or assignment, in
each case without recourse, as shall be reasonably necessary to vest in it or
its designee the ownership of Mortgage Loan [__], together with such other
documents or instruments as the Master Servicer shall reasonably require to
consummate the purchase contemplated hereby.
The undersigned Option Holder acknowledges and agrees that its
exercise of its Purchase Option Notice may not be revoked and, further, that
upon receipt of the Master Servicer's notice confirming that the exercise of its
Purchase Option is effective, the undersigned Option Holder, or its designee,
shall be obligated to close its purchase of Mortgage Loan ___ in accordance with
the terms and conditions of this letter and of the Pooling and Servicing
Agreement.
Very truly yours,
[Option Holder]
By:
Name:
Title:
[By signing this letter in the space provided below, the
[Controlling Class Certificateholder] [Special Servicer] hereby acknowledges and
affirms that it transferred its Purchase Option to the Option Holder identified
above on [_________].
[_______________________]
By:______________________
Name:
Title:]
EXHIBIT K
FORM OF TRANSFER CERTIFICATE FOR
RULE 144A BOOK-ENTRY CERTIFICATE TO REGULATION S
BOOK-ENTRY CERTIFICATE DURING THE RESTRICTED PERIOD
(Pursuant to Section 5.02(b) of the Pooling and Servicing Agreement)
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group - JPMorgan 2005-LDP3
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Chase Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series
2005-LDP3 Class [__]
--------------------------------------------------------------
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated August 1, 2005 (the "Pooling and Servicing Agreement"), by and among X.X.
Xxxxxx Xxxxx Commercial Mortgage Securities Corp., as Depositor, GMAC Commercial
Mortgage Corporation, as Master Servicer, CWCapital Asset Management LLC, as
Special Servicer, Xxxxx Fargo Bank, N.A., as Trustee, and LaSalle Bank National
Association, as Paying Agent, on behalf of the holders of X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP3. Capitalized terms used but not defined herein
shall have the meanings given to them in the Pooling and Servicing Agreement.
This letter relates to US $[_______] aggregate [Certificate
Balance][Notional Amount] of Certificates (the "Certificates") which are held in
the form of the Rule 144A Book-Entry Certificate (CUSIP No. _________) with the
Depository in the name of [insert name of transferor] (the "Transferor"). The
Transferor has requested a transfer of such beneficial interest for an interest
in the Regulation S Book-Entry Certificate (CUSIP No. __________) to be held
with [Euroclear] [CEDEL]* (Common Code No.____________) through the Depositary.
In connection with such request and in respect of such Certificates,
the Transferor does hereby certify that such transfer has been effected in
accordance with the transfer restrictions set forth in the Pooling and Servicing
Agreement and pursuant to and in accordance with Regulation S under the
Securities Act of 1933, as amended (the "Securities Act"), and accordingly the
Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the
United States,
(2) [at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the transferor nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States],**
(3) the transferee is not a U.S. Person within the meaning of Rule
902(o) of Regulation S nor a Person acting for the account or
benefit of a U.S. Person,
(4) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable,
(5) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act, and
(6) upon completion of the transaction, the beneficial interest
being transferred as described above will be held with the
Depository through [Euroclear] [Clearstream].***
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Master Servicer and the Special Servicer.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
----------------
* Select appropriate depository.
** Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
*** Select appropriate depository.
EXHIBIT L
[RESERVED]
EXHIBIT M
[RESERVED]
EXHIBIT N
FORM OF TRANSFER CERTIFICATE FOR
RULE 144A BOOK-ENTRY CERTIFICATE TO REGULATION S
BOOK-ENTRY CERTIFICATE AFTER RESTRICTED PERIOD
(Pursuant to Section 5.02(b) of the Pooling and Servicing Agreement)
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group - JPMorgan 2005-LDP3
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series
2005-LDP3, Class [__]
------------------------------------------------------------
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated August 1, 2005 (the "Pooling and Servicing Agreement"), by and among X.X.
Xxxxxx Chase Commercial Mortgage Securities Corp., as Depositor, GMAC Commercial
Mortgage Corporation, as Master Servicer, CWCapital Asset Management LLC, as
Special Servicer, Xxxxx Fargo Bank, N.A., as Trustee, and LaSalle Bank National
Association, as Paying Agent, on behalf of the holders of X.X. Xxxxxx Chase
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP3. Capitalized terms used but not defined herein
shall have the meanings given to them in the Pooling and Servicing Agreement.
This letter relates to US $[________] aggregate [Certificate
Balance] [Notional Amount] of Certificates (the "Certificates") which are held
in the form of the Rule 144A Book-Entry Certificate (CUSIP No. ________) with
the Depository in the name of [insert name of transferor] (the "Transferor").
The Transferor has requested a transfer of such beneficial interest in the
Certificates for an interest in the Regulation S Book-Entry Certificate (Common
Code No. _____).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such transfer has been
effected in accordance with the transfer restrictions set forth in the Pooling
and Servicing Agreement and, (i) with respect to transfers made in reliance on
Regulation S under the Securities Act of 1933, as amended (the "Securities
Act"), the Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the
United States;
(2) [at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the Transferor nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States];*
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act,
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Master Servicer and the Special Servicer.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
----------------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
EXHIBIT O
FORM OF TRANSFER CERTIFICATE OF
FROM REGULATION S BOOK-ENTRY CERTIFICATE
TO RULE 144A GLOBAL BOOK-ENTRY CERTIFICATE
DURING RESTRICTED PERIOD
(Pursuant to Section 5.02(b) of the Pooling and Servicing Agreement)
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group - JPMorgan 2005-LDP3
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Chase Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series
2005-LDP3, Class[__]
------------------------------------------------------------
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated June 1, 2005 (the "Pooling and Servicing Agreement"), by and among X.X.
Xxxxxx Xxxxx Commercial Mortgage Securities Corp., as Depositor, GMAC Commercial
Mortgage Corporation , as Master Servicer, CWCapital Asset Management LLC, as
Special Servicer, Xxxxx Fargo Bank, N.A., as Trustee, and LaSalle Bank National
Association, as Paying Agent, on behalf of the holders of X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP3. Capitalized terms used but not defined herein
shall have the meanings given to them in the Pooling and Servicing Agreement.
This letter relates to US $[________] aggregate [Certificate
Balance] [Notional Amount] of Certificates (the "Certificates") which are held
in the form of the Regulation S Book-Entry Certificate (CUSIP No. _______) with
[Euroclear] [Clearstream]* (Common Code No.__________) through the Depository in
the name of [insert name of transferor] (the "Transferor"). The Transferor has
requested a transfer of such beneficial interest in the Certificates for an
interest in the Regulation 144A Book-Entry Certificate (CUSIP No.____________).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such Certificates are
being transferred in accordance with (i) the transfer restrictions set forth in
the Pooling and Servicing Agreement and (ii) Rule 144A under the Securities Act
to a transferee that the Transferor reasonably believes is purchasing the
Certificates for its own account with respect to which the transferee exercises
sole investment discretion and the transferee and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A, in each case in
a transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States or any
jurisdiction.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Master Servicer, the Special Servicer and Initial Purchasers of the offering
of the Certificates.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
--------------------
* Select appropriate depository.
EXHIBIT P
FORM OF TRANSFER CERTIFICATE FOR REGULATION S
BOOK-ENTRY CERTIFICATE DURING RESTRICTED PERIOD
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group - JPMorgan 2005-LDP3
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series
2005-LDP3, Class [__]
------------------------------------------------------------
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02(b) of the
Pooling and Servicing Agreement, dated August 1, 2005 (the "Pooling and
Servicing Agreement"), by and among X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp., as Depositor, GMAC Commercial Mortgage Corporation, as Master
Servicer, CWCapital Asset Management LLC, as Special Servicer, Xxxxx Fargo Bank,
N.A., as Trustee, and LaSalle Bank National Association, as Paying Agent, on
behalf of the holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2005-LDP3 in connection
with the transfer by _______________ of a beneficial interest of $___________
[Certificate Balance] [Notional Amount] in a Book-Entry Certificate during the
Restricted Period to the undersigned (the "Transferee"). The Transferee desires
to beneficially own such transferred interest in the form of the Regulation S
Book-Entry Certificate. Capitalized terms used but not defined herein shall have
the meanings given to them in the Pooling and Servicing Agreement.
In connection with such transfer, the Transferee does hereby certify
that it is not a "U.S. Person" (within the meaning of Rule 902 Regulation S
under the Securities Act of 1933, as amended). This certificate and the
statements contained herein are made for your benefit and the benefit of the
Depositor, the Trustee, the Paying Agent, the Master Servicer and the Special
Servicer.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
EXHIBIT Q
FORM OF CERTIFICATION TO BE
PROVIDED WITH FORM 10-K
CERTIFICATION
-------------
X.X.Xxxxxx Xxxxx Commercial Mortgage Securities
Corp. Commercial Mortgage Pass-Through
Certificates
Series 2005-LDP3 (the "Trust")
I, [_____________], the President and Chief Executive Officer of
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., the depositor into the
above-referenced Trust, certify that:
1. I have reviewed this annual report on Form 10-K, and all reports on Form
8-K containing distribution or servicing reports filed in respect of
periods included in the year covered by this annual report, of the Trust;
2. Based on my knowledge, the information in these reports, taken as a whole,
does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of
the last day of the period covered by this annual report;
3. Based on my knowledge, the distribution or servicing information required
to be provided to the paying agent by the master servicer and the special
servicer under the pooling and servicing agreement for inclusion in these
reports is included in these reports;
4. Based on my knowledge and upon the annual compliance statement included in
this annual report and required to be delivered to the paying agent in
accordance with the terms of the pooling and servicing agreement, and
except as disclosed in this annual report, the master servicer and the
special servicer have fulfilled their obligations under the pooling and
servicing agreement; and
5. This annual report discloses all significant deficiencies relating to the
master servicer's or special servicer's compliance with the minimum
servicing standards based upon the report provided by an independent
public accountant, after conducting a review in compliance with the
Uniform Single Attestation Program for Mortgage Bankers or similar
procedure, as set forth in the pooling and servicing agreement, that is
included in this annual report.
In giving the certifications above, I have reasonably relied on information
provided to me by the following unaffiliated parties: [_____].
Date: _________________________
By:___________________________________
President and Chief Executive Officer
X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp.
EXHIBIT R
FORM OF NOTICE RELATING TO THE UNIVERSAL HOTEL PORTFOLIO MORTGAGE LOAN
August 24, 2005
VIA FACSIMILE
-------------
Attention: [__________________]
Re: X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2005-LDP3 and the Forum Shops
Mortgage Loan
Dear [_____________]:
GMAC Commercial Mortgage Corporation is the Master Servicer, as such term
is defined under the Universal Hotel Portfolio Intercreditor Agreement dated as
of July 29, 2005, by and among German American Capital Corporation, as Note A-1
Holder, German American Capital Corporation, as Note A-2 Holder, German American
Capital Corporation, as Note A-3 Holder, JPMorgan Chase Bank, N.A, as Note A-4
Holder, JPMorgan Chase Bank, N.A. as Note A-5 Holder, German American Capital
Corporation, as Note B-1 Holder and JPMorgan Chase Bank N.A., as Note B Holder.
Xxxxx Fargo Bank, N.A., as trustee for the registered holders of the Trust Fund
hereby directs Midland Loan Services, Inc., as servicer under the Universal
Hotel Portfolio Pooling Agreement, as follows:
GMAC Commercial Mortgage Corporation shall remit to the GMAC Commercial
Mortgage Corporation, as Master Servicer under the Pooling Service Agreement
dated August 1, 205 between X.X. Xxxxxx Chase Commercial Mortgage Securities
Corp., as Depositor, GMAC Commercial Mortgage Corporation, as Master Servicer,
CWCapital Asset Management, LLC, as Special Servicer, Xxxxx Fargo Bank, N.A., as
Trustee and LaSalle Bank National Association, as Paying Agent, all amounts
payable to, and 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 Universal Hotel Portfolio Mortgage Loan under
the Universal Hotel Portfolio Intercreditor Agreement and the Universal Hotel
Portfolio Pooling Agreement.
Thank you for your attention to this matter.
XXXXX FARGO BANK, N.A., as Trustee for the Holders of the X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP3.
Date: _________________________
XXXXX FARGO BANK, N.A.
By: ___________________________
[Name]
[Title]
EXHIBIT S-1
FORM OF CERTIFICATION TO BE
PROVIDED TO DEPOSITOR BY PAYING AGENT
CERTIFICATION
-------------
X.X.Xxxxxx Xxxxx Commercial Mortgage Securities
Corp. Commercial Mortgage Pass-Through
Certificates
Series 2005-LDP3 (the "Trust")
I, [identify the certifying individual], a [title] of LaSalle Bank
National Association, certify to X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp. and its officers, directors and affiliates, and with the
knowledge and intent that they will rely upon this certification, that:
1. I have reviewed the annual report on Form 10-K for the fiscal year 20___,
and all reports on Form 8-K containing distribution or servicing reports
filed in respect of periods included in the year covered by that annual
report, of the Trust;
2. Based on my knowledge, the distribution information in these reports,
taken as a whole, does not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements made, in
light of the circumstances under which such statements were made, not
misleading as of the last day of the period covered by that annual report;
and
3. Based on my knowledge, the distribution or servicing information provided
to the paying agent by the master servicer under the pooling and servicing
agreement for inclusion in these reports is included in these reports.
Date: _________________________
LASALLE BANK NATIONAL ASSOCIATION
By:____________________________________
[Name]
[Title]
EXHIBIT S-2
FORM OF CERTIFICATION TO BE PROVIDED TO DEPOSITOR
BY THE MASTER SERVICER
CERTIFICATION
-------------
Re: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp, Commercial Mortgage
Pass-Through Certificates, Series 2005-LDP3 (the "Trust"), issued pursuant
to that certain Pooling and Servicing Agreement, dated as of August 1,
2005 (the "Pooling and Servicing Agreement"), by and among X.X. Xxxxxx
Chase Commercial Mortgage Securities Corp, as depositor (the "Depositor"),
GMAC Commercial Mortgage Corporation, as master servicer (the "Master
Servicer"), CWCapital Asset Management LLC, as special servicer (the
"Special Servicer"), Xxxxx Fargo Bank N.A., as trustee (the "Trustee") and
LaSalle Bank National Association as paying agent (the "Paying Agent")
I, [identify the certifying individual], a [title] of GMAC
Commercial Mortgage Corporation, on behalf of GMAC Commercial Mortgage
Corporation, certify to X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
and its officers, directors and affiliates, and with the knowledge and intent
that they will rely upon this certification, that:
1. Based on my knowledge and the statements made in the
corresponding certificate of the Special Servicer pursuant to Section 4.02(e) of
the Pooling and Servicing Agreement, a copy of which is attached hereto as
Exhibit "A", all reports required to be submitted by the Master Servicer to the
Trustee and the Paying Agent under the Pooling and Servicing Agreement (the
"Servicing Reports") for inclusion in the annual report on Form 10-K for the
fiscal year 20__ of the Trust and all reports on Form 8-K containing
distribution or servicing reports filed in respect of periods included in the
year covered by such annual report have been submitted to the Trustee and the
Paying Agent;
2. Based on my knowledge and the statements made in the
corresponding certificate of the Special Servicer pursuant to Section 4.02(e) of
the Pooling and Servicing Agreement, a copy of which is attached hereto as
Exhibit "A", the information contained in the Servicing Reports, taken as a
whole, does not contain any untrue statement of a material facts or omit to
state a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of
December 31, 20__;
3. I am responsible for reviewing the activities performed by the
Master Servicer under the Pooling and Servicing Agreement and based upon my
knowledge and the annual compliance review required under Section 3.13 of the
Pooling and Servicing Agreement with respect to the Master Servicer, and except
as disclosed in the annual officer's certificate required under Section 3.13 of
the Pooling and Servicing Agreement, the Master Servicer has fulfilled its
obligations under the Pooling and Servicing Agreement; and
4. The report of the Master Servicer's certified public accountants
required under Section 3.14 of the Pooling and Servicing Agreement discloses all
significant deficiencies relating to the compliance of the Master Servicer with
the minimum servicing standards in accordance with a review conducted in
compliance with the Uniform Single Attestation Program for Mortgage Bankers or
similar standard as set forth in the Pooling and Servicing Agreement.
Date: _________________________
GMAC COMMERCIAL MORTGAGE CORPORATION
By: _________________________________
[Name]
[Title]
EXHIBIT S-3
FORM OF CERTIFICATION TO BE
PROVIDED TO DEPOSITOR BY SPECIAL SERVICER
CERTIFICATION
-------------
Re: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp, Commercial
Mortgage Pass-Through Certificates, Series 2005-LDP3 (the "Trust"),
issued pursuant to that certain Pooling and Servicing Agreement,
dated as of August 1, 2005 (the "Pooling and Servicing Agreement"),
by and among X.X. Xxxxxx Chase Commercial Mortgage Securities Corp,
as depositor (the "Depositor"), GMAC Commercial Mortgage
Corporation, as master servicer (the "Master Servicer"), CWCapital
Asset Management LLC, as special servicer (the "Special Servicer"),
Xxxxx Fargo Bank N.A., as trustee (the "Trustee") and LaSalle Bank
National Association as paying agent (the "Paying Agent")
I, [identify the certifying individual], a [title] of CWCapital
Asset Management LLC, on behalf of CWCapital Asset Management LLC, certify to
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., [________] and their
officers, directors and affiliates, and with the knowledge and intent that they
will rely upon this certification, that:
1. Based on my knowledge, all reports required to be submitted by
the Special Servicer to the Master Servicer under the Pooling and Servicing
Agreement (the "Servicing Reports") for inclusion in the annual report on Form
10-K for the fiscal year 20__ of the Trust and all reports on Form 8-K
containing distribution or servicing reports filed in respect of periods
included in the year covered by such annual report have been submitted to the
Master Servicer;
2. Based on my knowledge, the information contained in the Servicing
Reports, taken as a whole, does not contain any untrue statement of a material
facts or omit to state a material fact necessary to make the statements made, in
light of the circumstances under which such statements were made, not misleading
as of December 31, 20__;
3. I am responsible for reviewing the activities performed by the
Special Servicer under the Pooling and Servicing Agreement and based upon my
knowledge and the annual compliance review required under Section 3.13 of the
Pooling and Servicing Agreement with respect to the Special Servicer, and except
as disclosed in the annual officer's certificate required under Section 3.13 of
the Pooling and Servicing Agreement, the Special Servicer has fulfilled its
obligations under the Pooling and Servicing Agreement; and
4. The report of the Special Servicer's certified public accountants
required under Section 3.14 of the Pooling and Servicing Agreement discloses all
significant deficiencies relating to the compliance of the Special Servicer with
the minimum servicing standards in accordance with a review conducted in
compliance with the Uniform Single Attestation Program for Mortgage Bankers or
similar standard as set forth in the Pooling and Servicing Agreement.
Date: _________________________
CWCAPITAL ASSET MANAGEMENT LLC
By: __________________________
[Name]
[Title]
EXHIBIT T
INITIAL COMPANION HOLDERS
CBA-Mezzanine Capital Finance, LLC shall be the initial Companion Holder with
respect to the 0000 Xxxxxxxx Xxxxxxxxx Loan.
CapLease, LP shall be the initial Companion Holder with respect to the Lowe's
Aliso Viejo Loan.
UHP and Xxxxx Fargo Bank, National Association are the initial Companion Holders
with respect to the UHP Loan.
EXHIBIT U
FORM OF
NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOAN
To: Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Commercial Mortgage Surveillance
From: GMAC Commercial Mortgage Corporation, National Association, in
its capacity as Master Servicer (the "Master Servicer") under
the Pooling and Servicing Agreement dated as of August 1, 2005
(the "Pooling and Servicing Agreement"), among the Master
Servicer, Xxxxx Fargo Bank, N.A., as Trustee, and others.
Date: _________, 20___
Re: X.X. Xxxxxx Commercial Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2005-LDP3
Mortgage Loan (the "Mortgage Loan") identified by loan number
_____ on the Mortgage Loan Schedule attached to the Pooling
and Servicing Agreement and heretofore secured by the
Mortgaged Properties identified on the Mortgage Loan Schedule
by the following names:____________________
Reference is made to the Pooling and Servicing Agreement described
above. Capitalized terms used but not defined herein have the meanings assigned
to such terms in the Pooling and Servicing Agreement.
As Master Servicer under the Pooling and Servicing Agreement, we
hereby:
(a) Notify you that the Mortgagor has consummated a defeasance of
the Mortgage Loan pursuant to the terms of the Mortgage Loan, of the type
checked below:
____ a full defeasance of the entire principal balance of the
Mortgage Loan; or
____ a partial defeasance of a portion of the principal balance of
the Mortgage Loan that represents and, an allocated loan amount of
$____________ or _______% of the entire principal balance of the
Mortgage Loan;
(b) Certify that each of the following is true, subject to those
exceptions set forth with explanatory notes on Exhibit A hereto, which
exceptions the Master Servicer has determined, consistent with the Servicing
Standards, will have no material adverse effect on the Mortgage Loan or the
defeasance transaction:
(i) The Mortgage Loan documents permit the defeasance, and the terms
and conditions for defeasance specified therein were satisfied in all
material respects in completing the defeasance.
(ii) The defeasance was consummated on __________, 20__.
(iii) The defeasance collateral consists of securities that (i)
constitute "government securities" as defined in Section 2(a)(16) of the
Investment Company Act of 1940 as amended (15 U.S.C. 80A1), (ii) are
listed as "Qualified Investments for `AAA' Financings" under Paragraphs 1,
2 or 3 of "Cash Flow Approach" in Standard & Poor's Public Finance
Criteria 2000, as amended to the date of the defeasance, (iii) are rated
`AAA' by S&P, (iv) if they include a principal obligation, the principal
due at maturity cannot vary or change, and (v) are not subject to
prepayment, call or early redemption.
(iv) The Master Servicer received an opinion of counsel (from
counsel approved by the Master Servicer in accordance with the Servicing
Standard) that the defeasance will not result in an Adverse REMIC Event.
(v) The Master Servicer determined that the defeasance collateral
will be owned by an entity (the "Defeasance Obligor") that is a
Single-Purpose Entity (as defined in Standard & Poor's Structured Finance
Ratings Real Estate Finance Criteria, as amended to the date of the
defeasance (the "S&P Criteria")) as of the date of the defeasance, and
after the defeasance owns no assets other than the defeasance collateral
and real property securing Mortgage Loans included in the pool.
(vi) The Master Servicer received written confirmation of the
crediting of the defeasance collateral to an Eligible Account (as defined
in the S&P Criteria) in the name of the Defeasance Obligor, which account
is maintained as a securities account by a securities intermediary and has
been pledged to the Trustee.
(vii) The agreements executed in connection with the defeasance (i)
grant control of the pledged securities account to Trustee, (ii) require
the securities intermediary to make the scheduled payments on the Mortgage
Loan from the proceeds of the defeasance collateral directly to the Master
Servicer's collection account in the amounts and on the dates specified in
the Mortgage Loan documents or, in a partial defeasance, the portion of
such scheduled payments attributed to the allocated loan amount for the
real property defeased, increased by any defeasance premium specified in
the Mortgage Loan documents (the "Scheduled Payments"), (iii) permit
reinvestment of proceeds of the defeasance collateral only in Permitted
Investments (as defined in the S&P Criteria), (iv) permit release of
surplus defeasance collateral and earnings on reinvestment from the
pledged securities account only after the Mortgage Loan has been paid in
full, if any such release is permitted, (v) prohibit transfers by the
Defeasance Obligor of the defeasance collateral and subordinate liens
against the defeasance collateral, and (vi) provide for payment from
sources other than the defeasance collateral or other assets of the
Defeasance Obligor of all fees and expenses of the securities intermediary
for administering the defeasance and the securities account and all fees
and expenses of maintaining the existence of the Defeasance Obligor.
(viii)The Master Servicer received written confirmation from a firm
of independent certified public accountants, who were approved by the
Master Servicer in accordance with the Servicing Standard stating that (i)
revenues from the defeasance collateral (without taking into account any
earnings on reinvestment of such revenues) will be sufficient to timely
pay each of the Scheduled Payments after the defeasance including the
payment in full of the Mortgage Loan (or the allocated portion thereof in
connection with a partial defeasance) on its Maturity Date (or, in the
case of an ARD Loan, on its Anticipated Repayment Date), (ii) the revenues
received in any month from the defeasance collateral will be applied to
make Scheduled Payments within four (4) months after the date of receipt,
and (iii) interest income from the defeasance collateral to the Defeasance
Obligor in any calendar or fiscal year will not exceed such Defeasance
Obligor's interest expense for the Mortgage Loan (or the allocated portion
thereof in a partial defeasance) for such year.
(ix) The Mortgage Loan is not among the ten (10) largest loans in
the pool. The entire principal balance of the Mortgage Loan as of the date
of defeasance was less than both $[______] and five percent of pool
balance, which is less than [__]% of the aggregate Certificate Balance of
the Certificates as of the date of the most recent Trustee's Distribution
Date Statement received by us (the "Current Report").
(x) [The Master Servicer has received opinions of counsel stating
that the Trustee possesses a valid, perfected first priority security
interest in the defeasance collateral and that the documents executed in
connection with the defeasance are enforceable in accordance with their
respective terms.]
(xi) The defeasance described herein, together with all prior and
simultaneous defeasances of Mortgage Loans, brings the total of all fully
and partially defeased Mortgage Loans to $__________________, which is
_____% of the aggregate Certificate Balance of the Certificates as of the
date of the Current Report.
(c) Certify that Exhibit B hereto is a list of the material
agreements, instruments, organizational documents for the Defeasance Obligor,
and opinions of counsel and independent accountants executed and delivered in
connection with the defeasance.
(d) Certify that the individual under whose hand the Master Servicer
has caused this Notice and Certification to be executed did constitute a
Servicing Officer as of the date of the defeasance described above.
(e) Agree to provide copies of all items listed in Exhibit B to you
upon request.
IN WITNESS WHEREOF, the Master Servicer has caused this Notice and
Certification to be executed as of the date captioned above.
GMAC COMMERCIAL MORTGAGE CORPORATION
By: __________________________________
Name:
Title:
EXHIBIT V
INFORMATION REQUEST FROM CERTIFICATEHOLDER,
BENEFICIAL OWNER OR PROSPECTIVE PURCHASER
[Date]
LaSalle Bank National Association
as Paying Agent
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group - JPMorgan 2005-LDP3
Re: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2005-LDP3
------------------------------------------------------------------
Pursuant to the Pooling and Servicing Agreement, dated as of August
1, 2005 (the "Agreement"), by and among X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp., as Depositor, GMAC Commercial Mortgage Corporation, as Master
Servicer, CWCapital Asset Management LLC, as Special Servicer, Xxxxx Fargo Bank,
N.A., as Trustee, and LaSalle Bank National Association, as Paying Agent, with
respect to the X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2005-LDP3 (the
"Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is a [Holder] [Certificate Owner] [prospective
purchaser] of $___________ aggregate [Certificate Balance/Notional Amount] of
the Class ____ Certificates.
2. The undersigned is requesting access to the information (the
"Information") on the Paying Agent's Internet Website pursuant to Section 4.02
of the Agreement.
3. In consideration of the Paying Agent's disclosure to the
undersigned of the Information, the undersigned will keep the Information
confidential (except from such outside persons as are assisting it in evaluating
the Information), and such Information will not, without the prior written
consent of the Trustee, be disclosed by the undersigned or by its officers,
directors, partners employees, agents or representatives in any manner
whatsoever, in whole or in part; provided that the undersigned may provide all
or any part of the Information to any other person or entity that is
contemplating the purchase of any Certificate, but only if such person or entity
confirms in writing such prospective ownership interest and agrees to keep it
confidential; and provided that the undersigned may provide all or any part of
the Information to its auditors, legal counsel and regulators.
4. The undersigned will not use or disclose the Information in any
manner which could result in a violation of any provision of the Securities Act
of 1933, as amended (the "Securities Act"), or the Securities Exchange Act of
1934, as amended, or would require registration of any Certificate pursuant to
Section 5 of the Securities Act or under any other applicable law.
Capitalized terms not defined herein shall have the same meaning
ascribed to them in the Agreement.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
[HOLDER] [CERTIFICATE OWNER]
[PROSPECTIVE PURCHASER]
By:____________________________________
Name:
Title:
Telephone No.:
EXHIBIT W
TRUSTEE CERTIFICATION/EXCEPTION REPORT
[DATE]
To the Persons Listed on the attached Schedule A
Re: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2005-LDP3
------------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02 of the Pooling Servicing Agreement,
dated as of August 1, 2005 (the "Agreement"), by and among X.X. Xxxxxx Chase
Commercial Mortgage Securities Corp., as Depositor, GMAC Commercial Mortgage
Corporation, as Master Servicer, CWCapital Asset Management LLC, as Special
Servicer, Xxxxx Fargo Bank, N.A., as Trustee, and LaSalle Bank National
Association, as Paying Agent, the undersigned, as Trustee, hereby certifies
that, except as noted on the attached Trustee Exception Report, as to each
Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan
paid in full or for which a Liquidation Event has occurred) the Trustee has,
subject to Section 2.02(e) of the Pooling and Servicing Agreement, reviewed the
documents delivered to it pursuant to Section 2.01 of the Pooling and Servicing
Agreement and has determined that (i) all documents specified in clauses (i)
through (v), (ix) through (xii) and (xvi) (or, with respect to clause (xvi), a
copy of such letter of credit and the required officer's certificate), if any,
of the definition of "Mortgage File," as applicable, are in its possession, (ii)
the foregoing documents delivered or caused to be delivered by the Mortgage Loan
Sellers have been reviewed by it or by a Custodian on its behalf and appear
regular on their face and appear to be executed and to relate to such Mortgage
Loan, and (iii) based on such examination and only as to the foregoing
documents, the information set forth in the Mortgage Loan Schedule with respect
to the items specified in clauses (iv), (vi) and (viii)(c) in the definition of
"Mortgage Loan Schedule" is correct.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
XXXXX FARGO BANK, N.A.,
as Trustee
By:_____________________________
Name:
Title:
EXHIBIT X
REALIZED LOSS REPORT FORM
Realized Loss Form Prepared by Special Servicer and Master Servicer
--------------------------------------------------------------------------------
Portfolio Name Property Name:
Prospectus ID: City:
Servicer ID: State:
(applicable to Final Recovery Determination/Realized Loss) Property Type:
--------------------------------------------------------------------------------
Date: 4/15/2004
------------------------------------------------------------------------------------------------------------------------------------
Total Funds Received on Corrected Mortgage Loan and Specially Serviced Mortgage Loan:
Sales Proceeds or Payoff Proceeds --
Insurance Proceeds --
Suspense Balance --
Tax & Insurance Reserve Balance --
Other Reserve Balance --
Other Proceeds --
------
--
Less: Liquidation Expenses
Broker Fees --
Other Selling Expenses --
------
--
---------------
Proceeds available --
------------------------------------------------------------------------------------------------------------------------------------
1) Amounts Due Servicers and Trustee:
Includes Current Period and Accrued Servicing Fees and Other Fees:
(Excludes items from Additional Trust Fund Expenses)
a Liquidation Fee to SS on SS loan --
b Workout Fee on Corrected Mtg. loan --
c Master Servicing Fees (prior period) --
d Special Servicing Fees --
e Trustee Fees --
f Other Fees --
g P & I Advances (net advanced) --
h Interest on Advances- P & I --
i T&I Advances --
j Interest on Advances- T&I --
k Servicing Advances --
l Interest on Advances-Servicing Advances --
Total 0.00
2) Amounts held back for future payment:
a Other Unpaid Fees and expenses --
b Other amounts --
Total --
3) Accrued interest (current period and prior interest shortfalls)
a Current Scheduled Interest (Gross) --
b Cumulative Aser Amount --
c Deemed non-recoverable interest or Advances (prior shortfall) --
d Deemed non-recoverable interest or Advances (paid from trust principal) --
e Other unpaid interest --
------
Total --
4) Additional Trust fund Expenses (prior interest shortfalls or principal losses)
a Special Servicing Fees --
b Work Out fees (Corrected Mortgage Loan) --
c Interest on Advances --
d Other expenses: (Inspection by SS, Environmental, legal etc.) --
e Unliquidated Advances (work-out delayed reimb.paid from trust-principal) --
f Deemed Non-Recoverable Principal Advances (paid from trust-Principal) --
g Deemed Non-Recoverable Servicing Advances (paid from trust-Principal) --
Total --
Total #1 through #4 - Liquidation Expenses --
------
Net Proceeds (Proceeds available less #1 thru #4) --
------
(Proceeds available for Principal Distribution) (If negative, no proceeds available for distribution)
Beginning Scheduled Principal Balance --
------
Realized Loss Calculation --
------
Realized Loss to Trust (per definition in PSA) --
------
====================================================================================================================================
If Realized LossClaculation > Beginning Scheduled Principal Balance (if positive number) --
(refer to PSA for allocation) (optional)
a Amounts allocated to Interest shortfall--Current Period --
b Amount applied to Interest shortfall or principal loss--Prior Period --
c Amount to Realized Loss > than STB, allocate to current period principal --
d Other method per PSA
--------------------------------------------------------------------------------------------------------------------------------
Additional Proceeds received after Final Recovery Determination/Realized Loss
Amounts distributed as reimbursement of Unfunded Principal Balance Reductions (prior Realized Losses) (optional)
Date Description Amount Class that received funds (optional)
------------- ------ ------------------------------------
New8 0
current period 0
------
subtotal Additional Proceeds 0
------------------------------------------------------------------------------------------------------------------------------------
Additional Expenses after Final Recovery Determination/Realized Loss allocated to Interest Shortfalls
Date Description Amount Class that received funds (optional)
------------- ------ ------------------------------------
New8 Legal expense 0
Current Period 0
------
subtotal Additional Expenses 0
Current Period Adjustment to Trust (Additional Proceeds less Additional Expenses) --
------
Cumulative Adjustment to Trust --
(positive number =proceeds available)
====================================================================================================================================
Adjusted Realized Loss
(should be used if PSA provides for this)
___________
___________
____________________________________________________________________________________________________________________________________
Signature and Title of Servicing Officer Date
cc: Special Servicer, Master Servicer, Trustee,
attachment to Distribution Statement
------------------------------------------------------------------------------------------------------------------------------------
SCHEDULE 1
----------
MORTGAGE LOANS CONTAINING ADDITIONAL DEBT
Loan Number Property Name
---------------------------------------------
2 Universal Hotel Portfolio
8 Lowe's Aliso Viejo
38 1129 Northern Boulevard
SCHEDULE 2
----------
MORTGAGE LOANS WHICH INITIALLY PAY INTEREST ONLY
Loan Number Property Name
-----------------------------------------------------
2 Universal Hotel Portfolio
3 Four Seasons Boston
5 RREEF - Pacific Center
6 New Center One Building
7 Encino Financial Center
8 Lowe's Aliso Viejo
9 LXP-Nissan
10 000 Xxxxxxxx
11 Brownstones Apartments
12 Xxxxxx Foundation
00 Xxx X Xxxx Xxxxxx
00 Xxxxxxx Xxxxx at Mill Creek
15 Xxxxxxx Center South
16 The Atrium
17 The Qwest Building
19 The Shops at Kenilworth
20 The Ridge MHP
21 Xxxxxx on Preston Apartments
22 Avco Center
23 LXP-XXXX - Kalamazoo
24 LXP-Transocean
26 Extra Space Storage Portfolio
27 Michaels Stores Headquarters
00 Xxxxxxx Xxxxxxxxx
00 0000 Xxxxx Xxxxxx, XX, XX
31 LXP-Hartford Fire Insurance Company
00 Xxxx Xxxxx Xxxxx
33 Grapevine Crossing
00 Xxxxxxxxx Xxxxxx Xxxxxxxx
00 Xxxx Xxxxx Shopping Center
41 LXP-Kraft Foods/ Xxxxxx Xxxxx
42 Xxxxxxx Village Xxxxxxx
00 Xxxxxx'x Xxxx XXX
00 One Presidents Plaza
48 The Crest at Fair Oaks
50 LXP-AT&T (PA)
52 LXP-Gartner
54 Inland Xxxxxxxxxxx Xxxxx
00 Xxxxxxx Center
57 LXP-Alstom Power Office Building
58 Aspen Lakes Apartments
60 Town Center West
62 The Village on Pacific
63 Xxxxxxxxxx Townhomes
64 The Residences at Westchase
00 Xxxxxxxx Xxxxxxx Xxxxxxxxxx
00 Xxxxxxxxx Xxxxxxx MHC
00 Xxxxxxxxx Xxxxx
00 Xxxx Xxxx Xxxxxxxxxx
00 Plymouth Office Center
78 West Town Market
00 Xxxxxxxxxx Xxxxxxx
83 Soverign Apartments
85 Prime Sport Complex
87 Sugarcreek Crossing
88 Phoenix North MHP
89 000 Xxxx Xxxxx Xxxxxxxxx
00 Xxxxx Xxxxx Apartments
91 260-280 Quarry Rd.
92 Price Chopper Plaza
93 Inland Wickes Furniture
95 Charlotte Industrial Portfolio
96 Sandia East Apartments
98 000 Xxxx Xxxxx Xxxxxxxxx
102 The Inverness Apartments
103 Houma Plaza
000 Xxxxx Xxxxx Xxxxxx
111 Centre at South Shore Harbour II
112 Pep Boys / Smart & Final Center
000 Xxxxxxxx Xxxxx Xxxxxxxxxx
000 Xxxxxxxx Spectrum Retail Shops
118 Venture Tech
120 Stonegate Shopping Center
124 Fry's Superstition Springs Center
000 Xxxxxxxxxx Xxxxxxxxxx Xxxx
000 Xxxxxx Xxxx & Xxxxxxx Xxxxxx
000 0000 Xxxxxxxxxxx Xxxx
139 000 Xxxxxxxx Xxxxxx
000 Xxxxxxx-Xxxxxxxxxx Shopping Plaza
000 Xxxxxx Xxxx Xxxxxxxxxx
000 Xxxxxxxxxx Station
165 Godiva Building
166 Strawberry Hill of Elk Xxxxx Xxxxxxx
000 Xxxxxxxx Xxxxxxx
000 Xxxxxxx Xxxxx
000 Xxxxxxx Xxxxxxxx
000 Xxxxxxxx Xxxxx
000 Xxx Xxx Xxxxx
000 Xxxxxx Xxxxxxx Xxxxxxxxxx
000 Xxx Xxxxxx Apartments
208 000-000 X. Xxxxxx Xxxxxx
000 Xxxxxxxxxx Xxxx Xxxxx xx Xxxxxxx Xxxxxxx
SCHEDULE 3
----------
CLASS X REFERENCE RATE SCHEDULE
Distribution Date Reference Rate
-----------------------------------------------------
September 2005 5.28375%
October 2005 5.11944%
November 2005 5.28368%
December 2005 5.11937%
January 2006 5.11933%
February 2006 5.1193%
March 2006 5.11949%
April 2006 5.28347%
May 2006 5.11918%
June 2006 5.28338%
July 2006 5.1191%
August 2006 5.28329%
September 2006 5.28325%
October 2006 5.11895%
November 2006 5.28309%
December 2006 5.1188%
January 2007 5.11872%
February 2007 5.11865%
March 2007 5.11904%
April 2007 5.28266%
May 2007 5.11841%
June 2007 5.2825%
July 2007 5.11857%
August 2007 5.28268%
September 2007 5.28262%
October 2007 5.11836%
November 2007 5.28249%
December 2007 5.11819%
January 2008 5.28237%
February 2008 5.118%
March 2008 5.11824%
April 2008 5.28216%
May 2008 5.11772%
June 2008 5.28203%
July 2008 5.11672%
August 2008 5.28189%
September 2008 5.28183%
October 2008 5.11769%
November 2008 5.28167%
December 2008 5.11754%
January 2009 5.11747%
February 2009 5.1174%
March 2009 5.11774%
April 2009 5.28124%
May 2009 5.11716%
June 2009 5.28108%
July 2009 5.11701%
August 2009 5.28091%
September 2009 5.28083%
October 2009 5.11679%
November 2009 5.28066%
December 2009 5.11664%
January 2010 5.11655%
February 2010 5.11648%
March 2010 5.11685%
April 2010 5.2802%
May 2010 5.11623%
June 2010 5.27661%
July 2010 5.11984%
August 2010 5.29428%
September 2010 5.28957%
October 2010 5.12279%
November 2010 5.28942%
December 2010 5.12265%
January 2011 5.12257%
February 2011 5.1225%
March 2011 5.12307%
April 2011 5.289%
May 2011 5.12227%
June 2011 5.28883%
July 2011 5.12212%
August 2011 5.28866%
September 2011 5.28858%
October 2011 5.1219%
November 2011 5.28841%
December 2011 5.12174%
January 2012 5.28823%
February 2012 5.12158%
March 2012 5.12173%
April 2012 5.28796%
May 2012 5.12134%
June 2012 5.28778%
SCHEDULE 4
----------
CLASS A-SB PLANNED PRINCIPAL BALANCE SCHEDULE
Date Balance
------------------ ---------------
September 15, 2009 $104,651,000.00
October 15, 2009 $104,651,000.00
November 15, 2009 $104,651,000.00
December 15, 2009 $104,651,000.00
January 15, 2010 $104,651,000.00
February 15, 2010 $104,651,000.00
March 15, 2010 $104,651,000.00
April 15, 2010 $104,651,000.00
May 15, 2010 $104,651,000.00
June 15, 2010 $104,651,000.00
July 15, 2010 $104,651,000.00
August 15, 2010 $104,651,000.00
September 15, 2010 $104,651,000.00
October 15, 2010 $104,651,000.00
November 15, 2010 $104,651,000.00
December 15, 2010 $104,651,000.00
January 15, 2011 $104,651,000.00
February 15, 2011 $104,651,000.00
March 15, 2011 $104,651,000.00
April 15, 2011 $104,651,000.00
May 15, 2011 $104,651,000.00
June 15, 2011 $104,651,000.00
July 15, 2011 $104,651,000.00
August 15, 2011 $104,651,000.00
September 15, 2011 $104,651,000.00
October 15, 2011 $104,651,000.00
November 15, 2011 $104,651,000.00
December 15, 2011 $104,651,000.00
January 15, 2012 $104,651,000.00
February 15, 2012 $104,651,000.00
March 15, 2012 $104,651,000.00
April 15, 2012 $104,651,000.00
May 15, 2012 $104,651,000.00
June 15, 2012 $104,651,000.00
July 15, 2012 $104,651,000.00
August 15, 2012 $104,651,000.00
September 15, 2012 $104,651,000.00
October 15, 2012 $104,651,000.00
November 15, 2012 $104,651,000.00
December 15, 2012 $104,651,000.00
January 15, 2013 $104,651,000.00
February 15, 2013 $104,651,000.00
March 15, 2013 $104,651,000.00
April 15, 2013 $104,651,000.00
May 15, 2013 $104,651,000.00
June 15, 2013 $104,651,000.00
July 15, 2013 $104,651,000.00
August 15, 2013 $104,651,000.00
September 15, 2013 $104,651,000.00
October 15, 2013 $104,651,000.00
November 15, 2013 $104,651,000.00
December 15, 2013 $104,651,000.00
January 15, 2014 $104,651,000.00
February 15, 2014 $104,651,000.00
March 15, 2014 $104,651,000.00
April 15, 2014 $104,651,000.00
May 15, 2014 $104,650,874.64
June 15, 2014 $103,288,679.54
July 15, 2014 $101,732,863.35
August 15, 2014 $100,176,540.02
September 15, 2014 $98,482,366.37
October 15, 2014 $96,600,915.08
November 15, 2014 $94,890,605.29
