EXHIBIT 4
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Depositor
and
GMAC COMMERCIAL MORTGAGE CORPORATION
Master Servicer
and
LNR PARTNERS, INC.
Special Servicer
and
XXXXX FARGO BANK, N.A.
Trustee
and
LASALLE BANK NATIONAL ASSOCIATION
as Certificate Administrator
POOLING AND SERVICING AGREEMENT
Dated as of December 1, 2005
----------------------------
$1,546,255,942 (approximate)
Commercial Mortgage Pass-Through Certificates
Series 2005-LC1
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms............................................
SECTION 1.02. Certain Adjustments to the Principal Distributions on
the Certificates.......................................
SECTION 1.03. Calculation of LIBOR.....................................
SECTION 1.04. Calculation of CPI Index Rate............................
ARTICLE II
CONVEYANCE OF TRUST MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Trust Mortgage Loans.......................
SECTION 2.02. Acceptance of the Trust Fund by Trustee..................
SECTION 2.03. Mortgage Loan Seller's Repurchase or Substitution of
Trust Mortgage Loans for Document Defects and
Breaches of Representations and Warranties.............
SECTION 2.04. Representations and Warranties of Depositor..............
SECTION 2.05. Acceptance of REMIC I by Trustee.........................
SECTION 2.06. Execution, Authentication and Delivery of Class R-I
Certificates...........................................
SECTION 2.07. Conveyance of REMIC I Regular Interests; Acceptance
of REMIC II by Trustee.................................
SECTION 2.08. Execution, Authentication and Delivery of REMIC II
Certificates...........................................
SECTION 2.09. Conveyance of Class A-3FL REMIC II Regular Interest
and Class A-4FC REMIC II Regular Interest;
Acceptance of Grantor Trust A-3FL and Grantor Trust
A-4FC by Trustee.......................................
SECTION 2.10. Execution, Authentication and Delivery of Class Z,
Class A-3FL and Class 4-FC Certificates................
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. 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; Reserve Accounts...................
SECTION 3.04. Collection Account, Interest Reserve Account,
Additional Interest Account, Distribution Account,
Gain-on-Sale Reserve Account, Floating Rate Account
and Loan Combination Custodial Accounts................
SECTION 3.05. Permitted Withdrawals from the Collection Account,
the Interest Reserve Account, the Additional
Interest Account, the Distribution Account, the
Floating Rate Account and the Loan Combination
Custodial Accounts.....................................
SECTION 3.06. Investment of Funds in the Servicing Accounts, the
Reserve Accounts, the Collection Account, the
Distribution Account, the Floating Rate Account,
the Loan Combination Custodial Accounts, the
Additional Interest Account, the Gain-on-Sale
Reserve Account and the REO Accounts...................
SECTION 3.07. Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage........................
SECTION 3.08. Enforcement of Alienation Clauses........................
SECTION 3.09. Realization upon Defaulted Mortgage Loans; Required
Appraisals.............................................
SECTION 3.10. Trustee and Custodian to Cooperate; Release of
Mortgage Files.........................................
SECTION 3.11. Servicing Compensation...................................
SECTION 3.12. Property Inspections; Collection of Financial
Statements; Delivery of Certain Reports................
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 Accounts......................
SECTION 3.17. Management of REO Property...............................
SECTION 3.18. Resolution of Defaulted Mortgage Loans and REO
Properties.............................................
SECTION 3.19. Additional Obligations of Master Servicer................
SECTION 3.20. Modifications, Waivers, Amendments and Consents..........
SECTION 3.21. Transfer of Servicing between Master Servicer and
Special Servicer; Recordkeeping........................
SECTION 3.22. Sub-Servicing Agreements.................................
SECTION 3.23. Representations and Warranties of Master Servicer and
Special Servicer.......................................
SECTION 3.24. Sub-Servicing Agreement Representation and Warranty......
SECTION 3.25. Designation of Controlling Class Representative..........
SECTION 3.26. Application of Default Charges...........................
SECTION 3.27. Controlling Class Representative Contact with
Servicer...............................................
SECTION 3.28. Certain Matters Regarding the Loan Combinations..........
SECTION 3.29. Litigation Control.......................................
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions............................................
SECTION 4.02. Statements to Certificateholders.........................
SECTION 4.03. P&I Advances; Reimbursement of P&I Advances and
Servicing Advances.....................................
SECTION 4.04. Allocation of Realized Losses and Additional Trust
Fund Expenses..........................................
SECTION 4.05. Calculations.............................................
SECTION 4.06. Use of Agents............................................
SECTION 4.07. The Swap Agreements......................................
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....................................
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE
CONTROLLING CLASS REPRESENTATIVE
SECTION 6.01. Liability of Depositor, Master Servicer and Special
Servicer...............................................
SECTION 6.02. Merger, Consolidation or Conversion of Depositor or
Master Servicer or Special Servicer....................
SECTION 6.03. Limitation on Liability of the Depositor, the Master
Servicer, the Special Servicer and Others..............
SECTION 6.04. Resignation of Master Servicer and the Special
Servicer...............................................
SECTION 6.05. Rights of Depositor, Certificate Administrator and
Trustee in Respect of Master Servicer and the
Special Servicer.......................................
SECTION 6.06. Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee and Certificate
Administrator..........................................
SECTION 6.07. Depositor, Special Servicer, Certificate
Administrator and Trustee to Cooperate with Master
Servicer...............................................
SECTION 6.08. Depositor, Master Servicer, Certificate Administrator
and Trustee to Cooperate with Special Servicer.........
SECTION 6.09. Designation of Special Servicer by the Controlling
Class..................................................
SECTION 6.10. Master Servicer or Special Servicer as Owner of a
Certificate............................................
SECTION 6.11. The Controlling Class Representative.....................
SECTION 6.12. Certain Matters with Respect to the Glendale Galleria
Loan Combination.......................................
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default........................................
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. Additional Remedies of Trustee upon Event of Default.....
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE CERTIFICATE ADMINISTRATOR
SECTION 8.01. Duties of Trustee and the Certificate Administrator......
SECTION 8.02. Certain Matters Affecting Trustee and the Certificate
Administrator..........................................
SECTION 8.03. Trustee and Certificate Administrator Not Liable for
Validity or Sufficiency of Certificates or Mortgage
Loans..................................................
SECTION 8.04. Trustee and Certificate Administrator May Own
Certificates...........................................
SECTION 8.05. Fees and Expenses of Trustee and Certificate
Administrator; Indemnification of and by Trustee
and Certificate Administrator..........................
SECTION 8.06. Eligibility Requirements for Trustee and Certificate
Administrator..........................................
SECTION 8.07. Resignation and Removal of Trustee or Certificate
Administrator..........................................
SECTION 8.08. Successor Trustee or Successor Certificate
Administrator..........................................
SECTION 8.09. Merger or Consolidation of Trustee or Certificate
Administrator..........................................
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee............
SECTION 8.11. Appointment of Custodians................................
SECTION 8.12. Appointment of Authenticating Agents.....................
SECTION 8.13. Access to Certain Information............................
SECTION 8.14. Appointment of REMIC Administrators......................
SECTION 8.15. Representations, Warranties and Covenants of Trustee.....
SECTION 8.16. Representations, Warranties and Covenants of
Certificate Administrator..............................
SECTION 8.17. Reports to the Securities and Exchange Commission........
SECTION 8.18. Maintenance of Mortgage File.............................
ARTICLE IX
TERMINATION
SECTION 9.01. Termination upon Repurchase or Liquidation of All
Trust Mortgage Loans...................................
SECTION 9.02. Additional Termination Requirements......................
SECTION 9.03. Non-Serviced Trust Mortgage Loans........................
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. REMIC Administration.....................................
SECTION 10.02. Grantor Trust Administration.............................
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. Xxxxxx Act...............................................
SECTION 11.09. Successors and Assigns; Beneficiaries....................
SECTION 11.10. Article and Section Headings.............................
SECTION 11.11. Notices to Rating Agencies...............................
SECTION 11.12. Complete Agreement.......................................
SECTION 11.13. WAIVER OF TRIAL BY JURY..................................
EXHIBITS
Exhibit No. Exhibit Description
----------- -------------------
A-1 Form of Class X-0, X-0, X-0, X-0XX, X-0X, X-XX, X-0 and A-4FC
Certificates
A-2 [RESERVED]
A-3 Form of Class X Certificate
A-4 Form of Class AM, AJ, B, C and D Certificates
A-5 Form of Class E, F, G and H Certificates
A-6 Form of Class J, K, L, M, N, P and Q Certificates
A-7 Form of Class R-I and R-II Certificates
A-8 Form of Class Z Certificate
B Mortgage Loan Schedule
C Form of Custodial Certification
D-1 Form of Master Servicer Request for Release
D-2 Form of Special Servicer Request for Release
E-1 Form of Transferor Certificate for Transfers of Definitive
Non-Registered Certificates (Pursuant to Section 5.02(c))
E-2A Form I of Transferee Certificate for Transfers of Definitive
Non-Registered Certificates (Pursuant to Section 5.02(c))
E-2B Form II of Transferee Certificate for Transfers of Definitive
Non-Registered Certificates (Pursuant to Section 5.02(c))
E-2C Form of Transferee Certificate for Transfers of Interests in Rule
144A Global Certificates (Pursuant to Section 5.02(c))
E-2D Form of Transferee Certificate for Transfers of Interests in
Regulation S Global Certificates (Pursuant to Section 5.02(c))
F-1 Form I of Transferee Certificate Regarding ERISA Matters
(Definitive Non-Registered Certificates) (Pursuant to Section
5.02(c))
F-2 Form II of Transferee Certificate Regarding ERISA Matters
(Book-Entry Non-Registered Certificates) (Pursuant to Section
5.02(c))
G-1 Form of Transfer Affidavit and Agreement Regarding Residual
Certificates (Pursuant to Section 5.02(d)(i)(4))
G-2 Form of Transferor Certificate for Transfers of Residual
Certificates (Pursuant to Section 5.02(d)(i)(4))
H-1 Form of Notice and Acknowledgment (Regarding Proposed Special
Servicer)
H-2 Form of Acknowledgment of Proposed Special Servicer
I-1 Form of Information Request from Certificateholder or Certificate
Owner
I-2 Form of Information Request from Prospective Investor
J List of Mortgage Loans with Secured Creditor Impaired Property
Environmental Insurance Policies
K [RESERVED]
L Class X Reference Rate Schedule
M-1 Form of Purchase Option Notice
M-2 Form of Purchase Option Assignment by the Special Servicer
M-3 Form of Purchase Option Assignment by [Plurality Subordinate
Certificateholder or] Controlling Class Representative
N Form of Distribution Date Statement
O Form of Xxxxxxxx-Xxxxx Certification by the Depositor
P-1 Form of Certification To Be Provided by the Master Servicer to the
Depositor
P-2 Form of Certification To Be Provided by the Trustee to the
Depositor
P-3 Form of Certification To Be Provided by the Special Servicer to the
Depositor
P-4 Form of Certification To Be Provided by the Certificate
Administrator to the Depositor
Q [RESERVED]
R List of Sub-Servicing Agreements in Effect on the Closing Date
S Class A-SB Planned Principal Balance
T List of Serviced Mortgage Loans Requiring Operations and
Maintenance Plans
U Form of MLMT Series 2005-CKI1 Master Servicer Notice
V List of Merrill Trust Mortgage Loans With Late Payment Charges Due
Prior to Expiration of Their Payment Date Grace Periods
POOLING AND SERVICING AGREEMENT
This Pooling and Servicing Agreement is dated and effective as of
December 1, 2005, among XXXXXXX XXXXX MORTGAGE INVESTORS, INC., as Depositor,
GMAC COMMERCIAL MORTGAGE CORPORATION, as Master Servicer, LNR PARTNERS, INC., as
Special Servicer, XXXXX FARGO BANK, N.A., as Trustee, and LASALLE BANK NATIONAL
ASSOCIATION, as Certificate Administrator.
PRELIMINARY STATEMENT:
The Depositor intends to sell mortgage pass-through certificates, to
be issued hereunder in multiple classes, which in the aggregate will evidence
the entire beneficial ownership interest in a trust fund to be created
hereunder, the primary assets of which will be the Trust Mortgage Loans.
As provided herein, the Certificate Administrator will elect or
cause an election to be made to treat the segregated pool of assets consisting
of all of the Trust Mortgage Loans (exclusive that portion of the interest
payments on the Trust Mortgage Loans that constitutes Additional Interest) and
certain other related assets subject to this Agreement as a REMIC for federal
income tax purposes, and such segregated pool of assets will be designated as
"REMIC I." The Class R-I Certificates will evidence the sole class of "residual
interests" in REMIC I for purposes of the REMIC Provisions under federal income
tax law. For federal income tax purposes, each REMIC I Regular Interest will be
designated as a separate "regular interest" in REMIC I for purposes of the REMIC
Provisions under federal income tax law. None of the REMIC I Regular Interests
will be certificated.
As provided herein, the Certificate Administrator will elect or
cause an election to be made to treat the segregated pool of assets consisting
of all of the REMIC I Regular Interests as a REMIC for federal income tax
purposes, and such segregated pool of assets will be designated as "REMIC II."
The Class R-II Certificates will evidence the sole class of "residual interests"
in REMIC II for purposes of the REMIC Provisions under federal income tax law.
For federal income tax purposes, each Class of the Regular Certificates, the
Class A-3FL REMIC II Regular Interest and the Class A-4FC REMIC II Regular
Interest will be designated as a separate "regular interest" in REMIC II for
purposes of the REMIC Provisions under federal income tax law.
The following table sets forth: (i) the class designation of each
Class of Sequential Pay Certificates; (ii) the Original Class Principal Balance
for each Class of Sequential Pay Certificates (in the case of the Class A-3FL
and Class A-4FC Certificates, the Class A-3FL REMIC II Regular Interest and the
Class A-4FC REMIC II Regular Interest, respectively); (iii) the corresponding
REMIC I Regular Interest (the "Corresponding REMIC I Regular Interest") for each
such Class of Sequential Pay Certificates or the Class A-3FL REMIC II Regular
Interest or Class A-4FC REMIC II Regular Interest; and (iv) the initial REMIC I
Principal Balance of each such Corresponding REMIC I Regular Interest.
Class of Original Class Corresponding
Sequential Pay Principal REMIC I Initial REMIC I
Certificates Balance Regular Interest(s) Principal Balance
------------ ------- ------------------- -----------------
Class A-1 $51,000,000 LA-1 $51,000,000
Class A-2 $104,847,000 LA-2 $104,847,000
Class A-3 $43,000,000 LA-3 $43,000,000
Class A-3FL(1) $119,667,000 LA-3FL $119,667,000
Class A-1A $225,100,000 LA-1A $225,100,000
Class A-SB $88,067,000 LA-SB $88,067,000
Class A-4 $425,698,000 LA-4 $425,698,000
Class A-4FC(2) $25,000,000 LA-4FC $25,000,000
Class AM $154,625,000 XXX $154,625,000
Class AJ $94,708,000 LAJ $94,708,000
Class B $32,858,000 LB $32,858,000
Class C $15,463,000 LC $15,463,000
Class D $28,992,000 LD $28,992,000
Class E $15,463,000 LE $15,463,000
Class F $25,126,000 LF $25,126,000
Class G $19,329,000 LG $19,329,000
Class H $21,261,000 LH $21,261,000
Class J $7,731,000 LJ $7,731,000
Class K $5,798,000 LK $5,798,000
Class L $5,799,000 LL $5,799,000
Class M $5,798,000 LM $5,798,000
Class N $5,799,000 LN $5,799,000
Class P $3,865,000 LP $3,865,000
Class Q $21,261,942 LQ $21,261,942
----------
(1) The Class A-3FL Certificates will have the same designation, Original
Class Principal Balance and Corresponding REMIC I Regular Interest as the
Class A-3FL REMIC II Regular Interest.
(2) The Class A-4FC Certificates will have the same designation, Original
Class Principal Balance and Corresponding REMIC I Regular Interest as the
Class A-4FC REMIC II Regular Interest.
There exists one Trust Mortgage Loan, the Glendale Galleria Trust
Mortgage Loan, which has a Cut-off Date Balance of $125,702,137 and is evidenced
by a Mortgage Note designated as "Replacement Note A-2." The Glendale Galleria
Trust Mortgage Loan is part of a loan group comprised of that Trust Mortgage
Loan and several other mortgage loans, namely the Glendale Galleria Pari Passu
Non-Trust Loan and the Glendale Galleria Subordinate Non-Trust Loans, that are
all secured by the same Mortgage encumbering the Glendale Galleria Mortgaged
Property. The Glendale Galleria Pari Passu Non-Trust Loans which is pari passu
in right of payment and in other respects with the Glendale Galleria Trust
Mortgage Loan, has a Cut-off Date Balance of $153,645,946 and is evidenced by a
Mortgage Note designated as "Replacement Note A-1." The Glendale Galleria Pari
Passu Non-Trust Mortgage Loan, which will not be included in the Trust Fund, is,
as of the Closing Date, included in a commercial mortgage securitization (the
"MLMT Series 2005-CKI1 Securitization") involving the issuance of the Xxxxxxx
Xxxxx Mortgage Trust 2005-CKI1, Commercial Mortgage Pass-Through Certificates,
Series 2005-CKI1. The Glendale Galleria Trust Mortgage Loan, the Glendale
Galleria Pari Passu Non-Trust Loan and the Glendale Galleria Subordinate
Non-Trust Loans collectively constitute the Glendale Galleria Loan Combination.
The relative rights of the holder of the Glendale Galleria Trust Mortgage Loan
and the respective holders of the Glendale Galleria Non-Trust Loans are set
forth in the Glendale Galleria Intercreditor Agreement. As of the Closing Date,
the entire Glendale Galleria Loan Combination is being, and will continue to be,
serviced and administered in accordance with the Pooling and Servicing
Agreement, dated as of December 1, 2005 (the "MLMT Series 2005-CKI1 Pooling and
Servicing Agreement"), among Xxxxxxx Xxxxx Mortgage Investors, Inc., as
depositor, KeyCorp Real Estate Capital Markets, Inc., as master servicer (in
such capacity, the "MLMT Series 2005-CKI1 Master Servicer"), X.X. Xxxxxx
Company, Inc., as special servicer (in such capacity, the "MLMT Series 2005-CKI1
Special Servicer"), LaSalle Bank National Association, as trustee (in such
capacity, the "MLMT Series 2005-CKI1 Trustee") and ABN AMRO Bank N.V., as fiscal
agent.
Accordingly, the Glendale Galleria Trust Mortgage Loan, although
part of the Trust Fund, will be serviced and administered in accordance with the
MLMT Series 2005-CKI1 Pooling and Servicing Agreement by the MLMT Series
2005-CKI1 Master Servicer and the MLMT Series 2005-CKI1 Special Servicer for so
long as the Glendale Galleria Pari Passu Non-Trust Loan is part of the trust
fund created in connection with the MLMT Series 2005-CKI1 Securitization.
The Non-Trust Loans (which term includes each B-Note Non-Trust Loan,
each Glendale Galleria Subordinate Non-Trust Loan and the Glendale Galleria Pari
Passu Non-Trust Loan) are not part of the Trust Fund, but each is secured by the
same Mortgage on the same Mortgaged Property that also secures the related Trust
Mortgage Loan (which is either an A-Note Trust Mortgage Loan (in the case of a
B-Note Non-Trust Loan) or the Glendale Galleria Trust Mortgage Loan (in the case
of a Glendale Galleria Subordinate Non-Trust Loan or the Glendale Galleria Pari
Passu Non-Trust Loan) and is part of the Trust Fund). As and to the extent
provided in the related Loan Combination Intercreditor Agreement, each B-Note
Non-Trust Loan is generally subordinate to the related A-Note Trust Mortgage
Loan. As and to the extent provided in the related Loan Combination
Intercreditor Agreement, the Glendale Galleria Subordinate Non-Trust Loans are
subordinate in right of payment and in other respects to, and the Glendale
Galleria Pari Passu Non-Trust Loan is pari passu in right of payment and in
other respects with, the Glendale Galleria Trust Mortgage Loan. As and to the
extent provided herein and in the related Loan Combination Intercreditor
Agreement, the Non-Trust Loans (other than the Glendale Galleria Pari Passu
Non-Trust Loan and the Glendale Galleria Subordinate Non-Trust Loan) will be
serviced and administered in accordance with this Agreement. Amounts
attributable to the Non-Trust Loans shall not be assets of the Trust Fund, and
shall be owned by the related Non-Trust Noteholders.
The portion of the Trust Fund consisting of (i) the Class A-3FL
REMIC II Regular Interest (and distributions thereon), the Class A-3FL Swap
Agreement (and payments by the Class A-3FL Swap Counterparty thereunder) and the
applicable sub-account of the Floating Rate Account and (ii) amounts held from
time to time in the applicable sub-account of the Floating Rate Account that
represent distributions on the Class A-3FL REMIC II Regular Interest and
payments by the Class A-3FL Swap Counterparty under the Class A-3FL Swap
Agreement, shall be treated as a grantor trust for federal income tax purposes
and shall be designated as "Grantor Trust A-3FL"; provided that the initial
up-front payment by the Class A-3FL Swap Counterparty to the Depositor (or its
affiliate) under the Class A-3FL Swap Agreement shall belong to the Depositor
(or its affiliate) and shall not be part of the Trust Fund or Grantor Trust
A-3FL. As provided herein, the Certificate Administrator shall take all actions
required hereunder to ensure that the portion of the Trust Fund consisting of
the Grantor Trust A-3FL maintains its status as a grantor trust under federal
income tax law and not be treated as part of REMIC I or REMIC II. The Class
A-3FL Certificates shall represent undivided beneficial interests in Grantor
Trust A-3FL as described herein.
The portion of the Trust Fund consisting of (i) the Class A-4FC
REMIC II Regular Interest (and distributions thereon), the Class A-4FC Swap
Agreement (and payments by the Class A-4FC Swap Counterparty thereunder) and the
applicable sub-account of the Floating Rate Account and (ii) amounts held from
time to time in the applicable sub-account of the Floating Rate Account that
represent distributions on the Class A-4FC REMIC II Regular Interest and
payments by the Class A-4FC Swap Counterparty under the Class A-4FC Swap
Agreement, shall be treated as a grantor trust for federal income tax purposes
and shall be designated as "Grantor Trust A-4FC"; provided that the initial
up-front payment by the Class A-4FC Swap Counterparty to the Depositor (or its
affiliate) under the Class A-4FC Swap Agreement shall belong to the Depositor
(or its affiliate) and shall not be part of the Trust Fund or Grantor Trust
A-4FC. As provided herein, the Certificate Administrator shall take all actions
required hereunder to ensure that the portion of the Trust Fund consisting of
the Grantor Trust A-4FC maintains its status as a grantor trust under federal
income tax law and not be treated as part of REMIC I or REMIC II. The Class
A-4FC Certificates shall represent undivided beneficial interests in Grantor
Trust A-4FC as described herein.
The portion of the Trust Fund consisting of (i) the Additional
Interest and the Additional Interest Account and (ii) amounts held from time to
time in the Collection Account and/or the Additional Interest Account that
represent Additional Interest shall be treated as a grantor trust for federal
income tax purposes, and such grantor trust will be designated as "Grantor Trust
Z." As provided herein, the Certificate Administrator shall take all actions
reasonably necessary to ensure that the respective portion of the Trust Fund
consisting of Grantor Trust Z maintains its status as a "grantor trust" under
federal income tax law and is not treated as part of REMIC I or REMIC II.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the
Certificate Administrator agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Article.
"30/360 Basis": The accrual of interest calculated on the basis of a
360-day year consisting of twelve 30-day months.
"A-Note Trust Mortgage Loan": Each of the Trust Mortgage Loans as to
which the related Mortgage, which encumbers the related Mortgaged Property, also
secures a B-Note Non-Trust Loan, which B-Note Non-Trust Loan will not be
included in the Trust Fund. The A-Note Trust Mortgage Loans in the Trust are the
East Empire Industrial Portfolio A Note Trust Mortgage Loan and the Surfside
Garden Apartments A Note Trust Mortgage Loan.
"A/B Loan Combination": Collectively, each A-Note Trust Mortgage
Loan and the related B-Note Non-Trust Loan.
"Acceptable Insurance Default": With respect to any Serviced
Mortgage Loan, any default under the related Mortgage Loan documents resulting
from: (i) the exclusion of acts of terrorism from coverage under the related
"all risk" casualty insurance policy maintained on the related Mortgaged
Property and (ii) the related Mortgagor's failure to obtain insurance that
specifically covers acts of terrorism, but, in each case, only if the Special
Servicer has determined, in its reasonable judgment (exercised in accordance
with the Servicing Standard), that (a) such insurance is not available at
commercially reasonable rates and the subject hazards are not commonly insured
against by prudent owners of similar real properties in similar locales (but
only by reference to such insurance that has been obtained by such owners at
current market rates) or (b) such insurance is not available at any rate.
Subject to the Servicing Standard, in making any of the determinations required
in subclause (a) or (b) of this definition, the Special Servicer shall be
entitled to rely on the opinion of an insurance consultant.
"Accrued Certificate Interest": With respect to any Class of
Sequential Pay Certificates (other than the Class A-3FL Certificates and the
Class A-4FC Certificates), the Class A-3FL REMIC II Regular Interest or the
Class A-4FC REMIC II Regular Interest, for any Distribution Date, one month's
interest at the Pass-Through Rate applicable to such Class of Certificates, the
Class A-3FL REMIC II Regular Interest or the Class A-4FC REMIC II Regular
Interest, as the case may be, for such Distribution Date, accrued on the related
Class Principal Balance outstanding immediately prior to such Distribution Date
and, with respect to the Class X Certificates for any Distribution Date, the
aggregate of all Accrued Component Interest with respect to the Class X
Components for such Distribution Date. Accrued Certificate Interest shall be
calculated on a 30/360 Basis and, with respect to any Class of Regular
Certificates, the Class A-3FL REMIC II Regular Interest or the Class A-4FC REMIC
II Regular Interest for any Distribution Date, shall be deemed to accrue during
the calendar month preceding the month in which such Distribution Date occurs.
"Accrued Component Interest": With respect to any Class X Component
for any Distribution Date, one month's interest at the Class X Strip Rate with
respect to such Class X Component for such Distribution Date, accrued on the
Component Notional Amount of such Class X Component outstanding immediately
prior to such Distribution Date. Accrued Component Interest shall be calculated
on a 30/360 Basis and, with respect to any Class X Component for any
Distribution Date, shall be deemed to accrue during the calendar month preceding
the month in which such Distribution Date occurs.
"Actual/360 Basis": The accrual of interest calculated on the basis
of the actual number of days elapsed during any calendar month (or other
applicable accrual period) in a year assumed to consist of 360 days.
"Actual/360 Mortgage Loan": Each Mortgage Loan that accrues interest
on an Actual/360 Basis.
"Additional Exclusions": Exclusions in addition to those in the
insurance policies for the Mortgaged Properties on September 11, 2001.
"Additional Interest": With respect to any ARD Loan after its
Anticipated Repayment Date, all interest accrued on the principal balance of
such ARD Loan at the Additional Interest Rate (the payment of which interest
shall, under the terms of such Mortgage Loan, be deferred until the entire
outstanding principal balance of such ARD Loan has been paid), together with all
interest, if any, accrued at the related Mortgage Rate plus the related
Additional Interest Rate on such deferred interest. For purposes of this
Agreement, Additional Interest on an ARD Loan or any successor REO Loan with
respect thereto shall be deemed not to constitute principal or any portion
thereof and shall not be added to the unpaid principal balance or Stated
Principal Balance of such ARD Loan or successor REO Loan, notwithstanding that
the terms of the related Mortgage Loan documents so permit. To the extent that
any Additional Interest is not paid on a current basis, it shall be deemed to be
deferred interest.
"Additional Interest Account": The segregated account or accounts
(which may be a sub-account of the Distribution Account) created and maintained
by the Certificate Administrator pursuant to Section 3.04(d) which shall be
entitled "LaSalle Bank National Association, as Certificate Administrator on
behalf of Xxxxx Fargo Bank, N.A., as Trustee, in trust for the registered
holders of Xxxxxxx Xxxxx Mortgage Trust 2005-LC1, Commercial Mortgage
Pass-Through Certificates, Series 2005-LC1, Additional Interest Account." The
Additional Interest Account shall not be an asset of either REMIC I or REMIC II.
"Additional Interest Rate": With respect to any ARD Loan after its
Anticipated Repayment Date, the incremental increase in the per annum rate at
which such Mortgage Loan accrues interest after the Anticipated Repayment Date
(in the absence of defaults) as calculated and as set forth in the related
Mortgage Loan documents.
"Additional Trust Fund Expense": Any Special Servicing Fees, Workout
Fees, Principal Recovery Fees and, in accordance with Sections 3.03(d) and
4.03(d), interest payable to the Master Servicer, the Special Servicer, and the
Trustee on Advances (to the extent not offset by Default Charges or amounts
otherwise payable to any related Non-Trust Noteholder as provided herein) and
amounts payable to the Special Servicer in connection with inspections of
Mortgaged Properties required pursuant to the first sentence of Section 3.12(a)
(and not otherwise paid from Default Charges or amounts otherwise payable to any
related Non-Trust Noteholder as provided herein), as well as (without
duplication) any of the expenses of the Trust Fund that may be withdrawn (x)
pursuant to any of clauses (vii)(B), (ix), (xi), (xii), (xiii), (xv), (xviii)
and (xix) of Section 3.05(a) out of collections on the related Trust Mortgage
Loans or REO Properties or out of general collections on the Trust Mortgage
Loans and any REO Properties on deposit in the Collection Account as indicated
in such clauses of Section 3.05(a), (y) pursuant to any of clauses (ix), (xi),
(xii), (xiii) and (xvi) of Section 3.05(e) out of collections on any Loan
Combination or any related Loan Combination REO Property on deposit in the
related Loan Combination Custodial Account as indicated in such clauses of
Section 3.05(e) (but only to the extent that such collections would have
otherwise been transferred to the Collection Account with respect to the related
Trust Mortgage Loan or any successor Trust REO Loan with respect thereto), or
(z) pursuant to clause (ii) or any of clauses (iv) through (vi) of Section
3.05(b) out of general collections on the Trust Mortgage Loans and any REO
Properties on deposit in the Distribution Account; provided that for purposes of
the allocations contemplated by Section 4.04 no such expense shall be deemed to
have been incurred by the Trust Fund until such time as the payment thereof is
actually made from the Collection Account, the related Loan Combination
Custodial Account or the Distribution Account, as the case may be.
"Additional Yield and Prepayment Amount": With respect to any Class
of Sequential Pay Certificates (other than any Excluded Class), the Class A-3FL
REMIC II Regular Interest or the Class A-4FC REMIC II Regular Interest, for any
date on which distributions of principal are being made with respect to that
Class of Certificates, the Class A-3FL REMIC II Regular Interest or the Class
A-4FC REMIC II Regular Interest, as the case may be, pursuant to Section
4.01(a), provided that a Yield Maintenance Charge and/or Prepayment Premium was
actually collected during the related Collection Period on a Trust Mortgage Loan
or a Trust REO Loan (for purposes of this definition, the "Prepaid Loan") in the
Loan Group as to which the holders of such Class of Certificate, Grantor Trust
A-3FL with respect to the Class A-3FL REMIC II Regular Interest or Grantor Trust
A-4FC with respect to the Class A-4FC REMIC II Regular Interest are/is receiving
payments of principal on such Distribution Date, the product of (a) such Yield
Maintenance Charge and/or Prepayment Premium, net of Workout Fees and Principal
Recovery Fees payable therefrom and net of any portion of such Yield Maintenance
Charges and/or Prepayment Premiums applied pursuant to Section 4.01(k) to
reimburse one or more Classes of Sequential Pay Certificates in respect of
Realized Losses and/or Additional Trust Fund Expenses previously allocated to
such Class(es), multiplied by (b) a fraction, which in no event will be greater
than one, the numerator of which is equal to the positive excess, if any, of (i)
the Pass-Through Rate for the subject Class of Sequential Pay Certificates, the
Class A-3FL REMIC II Regular Interest or the Class A-4FC REMIC II Regular
Interest, as the case may be, over (ii) the related Discount Rate, and the
denominator of which is equal to the positive excess, if any, of (i) the
Mortgage Rate for the Prepaid Loan over (ii) the related Discount Rate,
multiplied by (c) a fraction, the numerator of which is equal to the amount of
principal distributable on the subject Class of Sequential Pay Certificates, the
Class A-3FL REMIC II Regular Interest or the Class A-4FC REMIC II Regular
Interest, as the case may be, on such Distribution Date (or, for so long as the
Class A-4 and Class A-1A Certificates and Class A-4FC REMIC II Regular Interest
are outstanding, principal distributable on the subject Class of Sequential Pay
Certificates, the Class A-3FL REMIC II Regular Interest or the Class A-4FC REMIC
II Regular Interest, as the case may be, on that Distribution Date from
collections on the applicable Loan Group that includes the Prepaid Loan),
pursuant to Section 4.01(a), and the denominator of which is equal to the
Principal Distribution Amount (or, so long as the Class A-4 and Class A-1A
Certificates and Class A-4FC REMIC II Regular Interest are outstanding, the Loan
Group 1 Principal Distribution Amount or the Loan Group 2 Principal Distribution
Amount, as applicable, based on which Loan Group includes the Prepaid Loan) for
such Distribution Date.
"Administered REO Property": Any REO Property other than any
Glendale Galleria REO Property.
"Advance": Any P&I Advance or Servicing Advance.
"Adverse Grantor Trust Event": As defined in Section 10.02(e).
"Adverse Rating Event": With respect to each Rating Agency that has
assigned a rating to any Class of rated Certificates, as of any date of
determination, the qualification, downgrade or withdrawal of the rating then
assigned to any such Class of rated Certificates by such Rating Agency (or the
placing of any such Class of rated Certificates on "negative credit watch"
status or "ratings outlook negative" status in contemplation of any such action
with respect thereto).
"Adverse REMIC Event": As defined in Section 10.01(h).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
"Anticipated Repayment Date": For each ARD Loan, the date specified
in the related Mortgage Note after which the rate per annum at which interest
accrues on such ARD Loan will increase as specified in the related Mortgage Note
(other than as a result of a default thereunder).
"Appraisal": With respect to any Serviced Mortgage Loan, an
appraisal of the related Mortgaged Property from an Independent Appraiser
selected by the Special Servicer or the Master Servicer, as applicable, prepared
in accordance with 12 C.F.R. ss. 225.64 and conducted in accordance with the
standards of the Appraisal Institute by an Independent Appraiser, which
Independent Appraiser shall be advised to take into account the factors
specified in Section 3.09(a), any available environmental, engineering or other
third-party reports, and other factors that a prudent real estate appraiser
would consider. The Master Servicer, the Special Servicer, the Trustee and the
Certificate Administrator may conclusively rely on any Appraisal obtained in
accordance with this Agreement and, in the case of the Glendale Galleria Trust
Mortgage Loan or any successor Trust REO Loan with respect thereto, any
appraisal obtained in accordance with the MLMT Series 2005-CKI1 Pooling and
Servicing Agreement.
"Appraisal Reduction Amount": With respect to any Required Appraisal
Mortgage Loan, the excess, if any, of: (a) an amount, as calculated by the
Special Servicer in consultation with the Controlling Class Representative as of
the first Determination Date immediately succeeding the date on which the
Special Servicer obtains knowledge of the subject Mortgage Loan becoming a
Required Appraisal Mortgage Loan, if no new Required Appraisal (or letter update
or internal valuation) is required, or otherwise the date on which a Required
Appraisal (or letter update or internal valuation, if applicable) is obtained,
and each anniversary of such Determination Date thereafter so long as the
subject Mortgage Loan remains a Required Appraisal Mortgage Loan, equal to the
sum (without duplication) of (i) the Stated Principal Balance of such Required
Appraisal Mortgage Loan, (ii) to the extent not previously advanced by or on
behalf of the Master Servicer, the Special Servicer or the Trustee, all unpaid
interest accrued on such Required Appraisal Mortgage Loan through the most
recent Due Date prior to such Determination Date at the related Net Mortgage
Rate (exclusive of any portion thereof that constitutes Additional Interest),
(iii) all accrued but unpaid (from related collections) Master Servicing Fees
and Special Servicing Fees with respect to such Required Appraisal Mortgage Loan
and, without duplication, all accrued or otherwise incurred but unpaid (from
related collections) Additional Trust Fund Expenses with respect to such
Required Appraisal Mortgage Loan, (iv) all related unreimbursed Advances made by
or on behalf of the Master Servicer, the Special Servicer or the Trustee with
respect to such Required Appraisal Mortgage Loan, together with (A) interest on
those Advances and (B) any related Unliquidated Advances, and (v) all currently
due and unpaid real estate taxes and unfunded improvement reserves and
assessments, insurance premiums and, if applicable, ground rents with respect to
the related Mortgaged Property; over (b) an amount equal to the sum of (i) the
Required Appraisal Value and (ii) all escrows, reserves and letters of credit
held as additional collateral held with respect to such Required Appraisal
Mortgage Loan. If the Special Servicer fails to obtain a Required Appraisal (or
letter update or internal valuation, if applicable) within the time limit
described in Section 3.09(a), and such Required Appraisal (or letter update or
internal valuation, if applicable) is required thereunder, then the Appraisal
Reduction Amount for the related Required Appraisal Mortgage Loan will equal 25%
of the Stated Principal Balance of such Required Appraisal Mortgage Loan, to be
adjusted upon receipt of a Required Appraisal or letter update or internal
valuation, if applicable.
Notwithstanding the foregoing, any "Appraisal Reduction Amount" (as
defined under the MLMT Series 2005-CKI1 Pooling and Servicing Agreement) with
respect to any Glendale Galleria Loan Combination shall be calculated, and
allocated among the respective Mortgage Loans comprising such Loan Combination,
by the MLMT Series 2005-CKI1 Applicable Servicer pursuant to the MLMT Series
2005-CKI1 Pooling and Servicing Agreement; and the parties hereto shall be
entitled to rely on such calculations and the allocations to the Glendale
Galleria Trust Mortgage Loan or any successor Trust REO Loan with respect
thereto, as reported to them by the MLMT Series 2005-CKI1 Applicable Servicer.
"Appraised Value": With respect to each Serviced Mortgaged Property
and Administered REO Property, the appraised value thereof based upon the most
recent Appraisal (or letter update or internal valuation, if applicable) that is
contained in the related Servicing File upon which the Master Servicer, the
Special Servicer, the Trustee and the Certificate Administrator may conclusively
rely; provided, that the term "Appraised Value" shall include any value
determined by the MLMT Series 2005-CKI1 Applicable Servicer with respect to the
Glendale Galleria Trust Mortgage Loan (upon which the Master Servicer, the
Special Servicer, the Trustee and the Certificate Administrator may conclusively
rely).
"ARD Loan": Any Mortgage Loan that provides that if the unamortized
principal balance thereof is not repaid on its Anticipated Repayment Date, such
Mortgage Loan will accrue Additional Interest at the rate specified in the
related Mortgage Note and the Mortgagor is required to apply excess monthly cash
flow generated by the related Mortgaged Property to the repayment of the
outstanding principal balance on such Mortgage Loan.
"Asset Status Report": As defined in Section 3.21(c).
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar document or instrument
executed by the Mortgagor in connection with the origination of the related
Mortgage Loan.
"Assumed Periodic Payment": With respect to any Balloon Loan for its
Stated Maturity Date (provided that such Mortgage Loan has not been paid in full
and no other Liquidation Event has occurred in respect thereof on or before such
Stated Maturity Date) and for any related Due Date thereafter as of which such
Mortgage Loan remains outstanding and part of the Trust Fund (or, in the case of
a Non-Trust Loan for any Due Date, as of which such Mortgage Loan remains
outstanding and the related Trust Mortgage Loan remains part of the Trust Fund),
the Periodic Payment of principal and/or interest deemed to be due in respect
thereof on such Due Date equal to the Periodic Payment that would have been due
in respect of such Mortgage Loan on such Due Date if the related Mortgagor had
been required to continue to pay principal in accordance with the amortization
schedule, if any, and to accrue interest at the Mortgage Rate, in effect
immediately prior to, and without regard to the occurrence of, its Stated
Maturity Date. With respect to any REO Loan, for any related Due Date as of
which the related REO Property (or, in the case of any Trust REO Loan that is a
successor to the Glendale Galleria Trust Mortgage Loan, any interest in the
related REO Property) remains part of the Trust Fund, the Periodic Payment of
principal and/or interest deemed to be due in respect thereof on such Due Date
equal to the Periodic Payment that would have been due in respect of the
predecessor Mortgage Loan on such Due Date had it remained outstanding (or, if
the predecessor Mortgage Loan was a Balloon Loan and such Due Date coincides
with or follows what had been its Stated Maturity Date, equal to the Assumed
Periodic Payment that would have been deemed due in respect of the predecessor
Mortgage Loan on such Due Date had it remained outstanding).
"Authenticating Agent": Any authenticating agent appointed pursuant
to Section 8.12 (or, in the absence of any such appointment, the Certificate
Administrator).
"Available Distribution Amount": With respect to any Distribution
Date, an amount equal to (a) the sum of, without duplication, (i) the aggregate
of the amounts on deposit in the Collection Account and the Distribution Account
as of the close of business on the related Determination Date and the amounts
collected by or on behalf of the Master Servicer as of the close of business on
such Determination Date and required to be deposited in the Collection Account,
which amounts shall include, with respect to the Collection Account, the amounts
remitted by the MLMT Series 2005-CKI1 Master Servicer with respect to the
Glendale Galleria Trust Mortgage Loan and, with respect to the Distribution
Account, in the case of the initial Distribution Date, the Closing Date Deposit,
(ii) the aggregate amount of any P&I Advances made by the Master Servicer or the
Trustee for distribution on the Certificates on such Distribution Date pursuant
to Section 4.03, (iii) the aggregate amount transferred from the Pool REO
Account (if established) and/or any Loan Combination Custodial Account to the
Collection Account after the Determination Date in the month of such
Distribution Date, but on or prior to the P&I Advance Date in such month,
pursuant to Section 3.16(c) and/or Section 3.05(e), as applicable, (iv) the
aggregate amount deposited by the Master Servicer in the Collection Account for
such Distribution Date pursuant to Section 3.19(a) in connection with Prepayment
Interest Shortfalls and Casualty/Condemnation Interest Shortfalls, and (v) for
each Distribution Date occurring in March, the aggregate of the Interest Reserve
Amounts in respect of each Interest Reserve Loan deposited into the Distribution
Account pursuant to Section 3.05(c), net of (b) the portion of the amount
described in clause (a) of this definition that represents one or more of the
following: (i) collected Periodic Payments that are due on a Due Date following
the end of the related Collection Period, (ii) any amounts payable or
reimbursable to any Person other than the Certificateholders from (A) the
Collection Account pursuant to clauses (ii)-(xvi), (xviii), (xix) and (xxi) of
Section 3.05(a) or (B) the Distribution Account pursuant to clauses (ii)-(vi)
and (ix) of Section 3.05(b), (iii) Prepayment Premiums and Yield Maintenance
Charges, (iv) Additional Interest, (v) with respect to the Distribution Date
occurring in February of each year or in January of each year that is not a leap
year, the Interest Reserve Amounts with respect to the Interest Reserve Loans to
be withdrawn from the Distribution Account and deposited in the Interest Reserve
Account in respect of such Distribution Date and held for future distribution
pursuant to Section 3.04(c) and (vi) any amounts deposited in the Collection
Account or the Distribution Account in error.
"B-Note Non-Trust Loan": With respect to each A-Note Trust Mortgage
Loan, the other Mortgage Loan that (i) is not included in the Trust Fund, (ii)
is subordinate in right of payment to such A-Note Trust Mortgage Loan to the
extent set forth in the related Loan Combination Intercreditor Agreement and
(iii) is secured by the same Mortgage on the same Mortgaged Property as such
A-Note Trust Mortgage Loan.
"B-Noteholder": Each holder of (i) the Mortgage Note for a B-Note
Non-Trust Loan and (ii) the corresponding rights under the related Loan
Combination Intercreditor Agreement.
"Balloon Loan": Any Mortgage Loan that by its original terms or by
virtue of any modification entered into as of the Closing Date provides for an
amortization schedule extending beyond its Stated Maturity Date.
"Balloon Payment": With respect to any Balloon Loan as of any date
of determination, the Scheduled Payment payable on the Stated Maturity Date of
such Mortgage Loan.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the United States Code).
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Book-Entry Non-Registered Certificate": Any Book-Entry Certificate
that is a Non-Registered Certificate.
"Breach": As defined in Section 2.03(a).
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, New York or the city in which the
Corporate Trust Office of the Trustee (which as of the Closing Date is Columbia,
Maryland), the Corporate Trust Office of the Certificate Administrator (which as
of the Closing Date is Chicago, Illinois), or the offices of the Master Servicer
(which as of the Closing Date is Horsham, Pennsylvania), or the offices of the
Special Servicer (which as of the Closing Date is Miami Beach, Florida), are
located, are authorized or obligated by law or executive order to remain closed.
"Casualty/Condemnation Interest Shortfall": With respect to any
Serviced Trust Mortgage Loan as to which a Casualty/Condemnation Principal
Prepayment was received during any Collection Period and was applied to such
Mortgage Loan as an unscheduled payment of principal prior to such Mortgage
Loan's Due Date in such Collection Period, the amount of interest, to the extent
not collected from the related Mortgagor, that would have accrued (at a rate per
annum equal to the sum of (x) the related Net Mortgage Rate for such Mortgage
Loan and (y) the Trustee Fee Rate) on the amount of such Casualty/Condemnation
Principal Prepayment during the period commencing on the date as of which such
Casualty/Condemnation Principal Prepayment was applied to such Mortgage Loan and
ending on the day immediately preceding such Due Date, inclusive (net of any
portion thereof that would have constituted Penalty Interest and Additional
Interest, if applicable).
"Casualty/Condemnation Principal Prepayment": With respect to any
Serviced Trust Mortgage Loan, any amounts constituting Insurance Proceeds or
amounts received in connection with the taking of all or a part of a Mortgaged
Property by the exercise of the power of eminent domain or condemnation, that
are applied as an unscheduled principal prepayment in accordance with the
provisions of this Pooling and Servicing Agreement, in reduction of the
principal balance of such Mortgage Loan.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the Xxxxxxx Xxxxx Mortgage Trust 2005-LC1,
Commercial Mortgage Pass-Through Certificates, Series 2005-LC1, as executed by
the Certificate Registrar and authenticated and delivered hereunder by the
Authenticating Agent.
"Certificate Administrator": LaSalle Bank National Association, and
its successor in interest.
"Certificate Administrator Fee": The portion of the Trustee Fee
calculated at the Certificate Administrator Fee Rate payable to the Certificate
Administrator pursuant to the terms hereof.
"Certificate Administrator Fee Rate": 0.00051% per annum.
"Certificate Administrator Investment Period": With respect to any
Distribution Date, the period commencing on the day immediately following the
preceding Distribution Date (or, in the case of the initial Distribution Date,
commencing on the Closing Date) and ending on and including the subject
Distribution Date.
"Certificate Administrator Report": As defined in Section 4.02(a).
"Certificate Factor": With respect to any Class of Sequential Pay
Certificates, the Class X Certificates, the Class A-3FL REMIC II Regular
Interest or the Class A-4FC REMIC II Regular Interest as of any date of
determination, a fraction, expressed as a decimal carried to at least eight
places, the numerator of which is the then current Class Principal Balance or
Class X Notional Amount, as applicable, of such Class of Certificates, the Class
A-3FL REMIC II Regular Interest or the Class A-4FC REMIC II Regular Interest, as
the case may be, and the denominator of which is the Original Class Principal
Balance or Original Notional Amount, as the case may be, of such Class of
Certificates, the Class A-3FL REMIC II Regular Interest or the Class A-4FC REMIC
II Regular Interest, as the case may be.
"Certificate Notional Amount": With respect to any Class X
Certificate, as of any date of determination, the then notional amount of such
Certificate equal to the product of (a) the Percentage Interest evidenced by
such Certificate, multiplied by (b) the then Class X Notional Amount.
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the books
of the Depository or on the books of a Depository Participant or on the books of
an indirect participating brokerage firm for which a Depository Participant acts
as agent.
"Certificate Principal Balance": With respect to any Sequential Pay
Certificate, as of any date of determination, the then outstanding principal
amount of such Certificate equal to the product of (a) the Percentage Interest
evidenced by such Certificate, multiplied by (b) the then Class Principal
Balance of the Class of Certificates to which such Certificate belongs.
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.02(a).
"Certificateholder": The Person in whose name a Certificate is
registered in the Certificate Register, except that (i) neither a Disqualified
Organization nor a Disqualified Non-United States Tax Person shall be Holder of
a Residual Certificate for any purpose hereof and, (ii) solely for the purposes
of giving any consent, approval or waiver pursuant to this Agreement that
relates to any of the Depositor, any Mortgage Loan Seller, the Master Servicer,
the Special Servicer, the Trustee or the Certificate Administrator in its
respective capacity as such (except with respect to amendments or waivers
referred to in Sections 7.04 and 11.01 hereof and any consent, approval or
waiver required or permitted to be made by the Plurality Subordinate
Certificateholder or the Controlling Class Representative and any election,
removal or replacement of the Special Servicer or the Controlling Class
Representative pursuant to Section 6.09), any Certificate registered in the name
of the Depositor, any Mortgage Loan Seller, the Master Servicer, the Special
Servicer, the Trustee or the Certificate Administrator as the case may be, or
any Certificate registered in the name of any of their respective Affiliates,
shall be deemed not to be outstanding, and the Voting Rights to which it is
entitled shall not be taken into account in determining whether the requisite
percentage of Voting Rights necessary to effect any such consent, approval or
waiver that relates to it has been obtained. The Certificate Registrar shall be
entitled to request and conclusively rely upon a certificate of the Depositor,
the Master Servicer or the Special Servicer in determining whether a Certificate
is registered in the name of an Affiliate of such Person. All references herein
to "Holders" or "Certificateholders" shall reflect the rights of Certificate
Owners as they may indirectly exercise such rights through the Depository and
the Depository Participants, except as otherwise specified herein; provided,
however, that the parties hereto shall be required to recognize as a "Holder" or
"Certificateholder" only the Person in whose name a Certificate is registered in
the Certificate Register.
"Certification Parties": As defined in Section 8.17(b).
"Certifying Person": As defined in Section 8.17(b).
"Class": Collectively, all of the Certificates bearing the same
alphabetic or, if applicable, alphanumeric, class designation.
"Class A Senior Certificates": The Class A-1, Class A-2, Class A-3,
Class A-3FL, Class A-1A, Class A-SB, Class A-4 and Class A-4FC Certificates.
"Class A-1 Certificate": Any one of the Certificates with a "Class
A-1" designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-1A Certificate": Any one of the Certificates with a "Class
A-1A" designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-2 Certificate": Any one of the Certificates with a "Class
A-2" designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-3 Certificate": Any one of the Certificates with a "Class
A-3" designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-3FL Additional Fixed Swap Payment": With respect to any
Distribution Date and the Class A-3FL Swap Payment Date to which it relates
based on the confirmation under the Class A-3FL Swap Agreement, the applicable
"Additional Fixed Amount" within the meaning of the confirmation under the Class
A-3FL Swap Agreement.
"Class A-3FL Available Funds": With respect to any Distribution
Date, an amount equal to (a) the sum of (i) the total amount of all principal
and/or interest distributions, as well as all distributions of Yield Maintenance
Charges and Prepayment Premiums, properly made on or in respect of the Class
A-3FL REMIC II Regular Interest with respect to such Distribution Date and (ii)
the amounts, if any, received from the Class A-3FL Swap Counterparty pursuant to
the Class A-3FL Swap Agreement for such Distribution Date, less (b) any Class
A-3FL Net Fixed Swap Payment, Class A-3FL Additional Fixed Swap Payment and
Class A-3FL Fixed Payer Shortfall Reimbursement Payment required to be paid to
the Class A-3FL Swap Counterparty pursuant to the Class A-3FL Swap Agreement,
consistent with Section 4.07, for such Distribution Date.
"Class A-3FL Certificate": Any one of the Certificates with a "Class
A-3FL" designation on the face thereof, substantially in the form of Exhibit A-1
hereto, and evidencing a proportionate interest in Grantor Trust A-3FL.
"Class A-3FL Depositor's Retained Amount": The initial up-front
payment from the Class A-3FL Swap Counterparty to the Depositor (or its
affiliate) pursuant to the Class A-3FL Swap Agreement.
"Class A-3FL Distribution Conversion": With respect to any
Distribution Date (i) immediately upon and during the continuation of a Swap
Payment Default under the Class A-3FL Swap Agreement while the Certificate
Administrator is pursuing remedies under the Class A-3FL Swap Agreement pursuant
to Section 4.07, or (ii) immediately upon and following the termination of the
Class A-3FL Swap Agreement until any replacement agreement is entered into, the
conversion of distributions with respect to the Class A-3FL Certificates from
distributions based, in part, on floating interest payments from the Class A-3FL
Swap Counterparty under the Class A-3FL Swap Agreement to distributions based
solely on distributions in respect of the Class A-3FL REMIC II Regular Interest,
as specified in Section 4.01(c).
"Class A-3FL Fixed Payer Shortfall Reimbursement Payment": With
respect to any Distribution Date and the Class A-3FL Swap Payment Date to which
it relates based on the confirmation under the Class A-3FL Swap Agreement, the
applicable "Fixed Payer Shortfall Reimbursement Amount" within the meaning of
the confirmation under the Class A-3FL Swap Agreement.
"Class A-3FL Fixed Swap Payment": With respect to any Distribution
Date and the Class A-3FL Swap Payment Date to which it relates based on the
confirmation under the Class A-3FL Swap Agreement, the applicable "Fixed Amount"
within the meaning of the confirmation under the Class A-3FL Swap Agreement.
"Class A-3FL Floating Swap Payment": With respect to any
Distribution Date and the Class A-3FL Swap Payment Date to which it relates
based on the confirmation under the Class A-3FL Swap Agreement, the applicable
"Floating Amount" within the meaning of the confirmation under the Class A-3FL
Swap Agreement.
"Class A-3FL Interest Distribution Amount": With respect to any
Distribution Date, an amount equal to (a) the sum of (i) the Distributable
Certificate Interest with respect to the Class A-3FL REMIC II Regular Interest
for such Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, (ii) any Class A-3FL Net Floating Swap Payment received from
the Class A-3FL Swap Counterparty for distribution on such Distribution Date and
(iii) if the Class A-3FL Swap Agreement is terminated and a replacement Class
A-3FL Swap Agreement is not obtained, any related Swap Termination Payment
collected during the related Collection Period, less (b) any Class A-3FL Net
Fixed Swap Payment and/or Class A-3FL Fixed Payer Shortfall Reimbursement
Payment made to the Class A-3FL Swap Counterparty with respect to such
Distribution Date.
"Class A-3FL Net Fixed Swap Payment": With respect to any
Distribution Date, the excess, if any of (i) the Class A-3FL Fixed Swap Payment
for that Distribution Date over (ii) the Class A-3FL Floating Swap Payment for
that Distribution Date.
"Class A-3FL Net Floating Swap Payment": With respect to any
Distribution Date, the excess, if any of (i) the Class A-3FL Floating Swap
Payment for that Distribution Date over (ii) the Class A-3FL Fixed Swap Payment
for that Distribution Date.
"Class A-3FL Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the amount of principal allocated pursuant
to Section 4.01 in respect of the Class A-3FL REMIC II Regular Interest on such
Distribution Date.
"Class A-3FL REMIC II Regular Interest": The uncertificated interest
in REMIC II, designated as "Class A-3FL," constituting a "regular interest" in
REMIC II for purposes of the REMIC Provisions and having the characteristics
attributable thereto in this Agreement.
"Class A-3FL Swap Agreement": With respect to the Class A-3FL
Certificates and the Class A-3FL REMIC II Regular Interest, the applicable
interest rate swap agreement consisting of the ISDA 2002 Master Agreement,
together with the related schedule, confirmation and any annexes thereto, dated
as of December 28, 2005, by and among the Class A-3FL Swap Counterparty and the
Certificate Administrator, solely in its capacity as Certificate Administrator,
on behalf of the Trust, or any replacement interest rate swap agreement entered
into by the Certificate Administrator in accordance with the terms of Section
4.07.
"Class A-3FL Swap Counterparty": Xxxxxxx Xxxxx Capital Services,
Inc. or its successor in interest or any swap counterparty under a replacement
Class A-3FL Swap Agreement.
"Class A-3FL Swap Payment Date": The "Payment Date" within the
meaning of the confirmation under the Class A-3FL Swap Agreement.
"Class A-4 Certificate": Any one of the Certificates with a "Class
A-4" designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-4FC Additional Fixed Swap Payment": With respect to any
Distribution Date and the Class A-4FC Swap Payment Date to which it relates
based on the confirmation under the Class A-4FC Swap Agreement, the applicable
"Additional Fixed Amount" within the meaning of the confirmation under the Class
A-4FC Swap Agreement.
"Class A-4FC Available Funds": With respect to any Distribution
Date, an amount equal to (a) the sum of (i) the total amount of all principal
and/or interest distributions, as well as all distributions of Yield Maintenance
Charges and Prepayment Premiums, properly made on or in respect of the Class
A-4FC REMIC II Regular Interest with respect to such Distribution Date and (ii)
the amounts, if any, received from the Class A-4FC Swap Counterparty pursuant to
the Class A-4FC Swap Agreement for such Distribution Date, less (b) any Class
A-4FC Net Fixed Swap Payment, Class A-4FC Additional Fixed Swap Payment and
Class A-4FC Fixed Payer Shortfall Reimbursement Payment required to be paid to
the Class A-4FC Swap Counterparty pursuant to the Class A-4FC Swap Agreement,
consistent with Section 4.07, for such Distribution Date.
"Class A-4FC Certificate": Any one of the Certificates with a "Class
A-4FC" designation on the face thereof, substantially in the form of Exhibit A-1
hereto, and evidencing a proportionate interest in Grantor Trust A-4FC.
"Class A-4FC Depositor's Retained Amount": The initial up-front
payment from the Class A-4FC Swap Counterparty to the Depositor (or its
affiliate) pursuant to the Class A-4FC Swap Agreement.
"Class A-4FC Distribution Conversion": With respect to any
Distribution Date (i) immediately upon and during the continuation of a Swap
Payment Default under the Class A-4FC Swap Agreement while the Certificate
Administrator is pursuing remedies under the Class A-4FC Swap Agreement pursuant
to Section 4.07, or (ii) immediately upon and following the termination of the
Class A-4FC Swap Agreement until any replacement agreement is entered into, the
conversion of distributions with respect to the Class A-4FC Certificates from
distributions based, in part, on floating interest payments from the Class A-4FC
Swap Counterparty under the Class A-4FC Swap Agreement to distributions based
solely on distributions in respect of the Class A-4FC REMIC II Regular Interest,
as specified in Section 4.01(c).
"Class A-4FC Fixed Payer Shortfall Reimbursement Payment": With
respect to any Distribution Date and the Class A-4FC Swap Payment Date to which
it relates based on the confirmation under the Class A-4FC Swap Agreement, the
applicable "Fixed Payer Shortfall Reimbursement Amount" within the meaning of
the confirmation under the Class A-4FC Swap Agreement.
"Class A-4FC Fixed Swap Payment": With respect to any Distribution
Date and the Class A-4FC Swap Payment Date to which it relates based on the
confirmation under the Class A-4FC Swap Agreement, the applicable "Fixed Amount"
within the meaning of the confirmation under the Class A-4FC Swap Agreement.
"Class A-4FC Floating Swap Payment": With respect to any
Distribution Date and the Class A-4FC Swap Payment Date to which it relates
based on the confirmation under the Class A-4FC Swap Agreement, the applicable
"Floating Amount" within the meaning of the confirmation under the Class A-4FC
Swap Agreement.
"Class A-4FC Interest Distribution Amount": With respect to any
Distribution Date, an amount equal to (a) the sum of (i) the Distributable
Certificate Interest with respect to the Class A-4FC REMIC II Regular Interest
for such Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, (ii) any Class A-4FC Net Floating Swap Payment received from
the Class A-4FC Swap Counterparty for distribution on such Distribution Date and
(iii) if the Class A-4FC Swap Agreement is terminated and a replacement Class
A-4FC Swap Agreement is not obtained, any related Swap Termination Payment
collected during the related Collection Period, less (b) any Class A-4FC Net
Fixed Swap Payment and/or Class A-4FC Fixed Payer Shortfall Reimbursement
Payment made to the Class A-4FC Swap Counterparty with respect to such
Distribution Date.
"Class A-4FC Net Fixed Swap Payment": With respect to any
Distribution Date, the excess, if any of (i) the Class A-4FC Fixed Swap Payment
for that Distribution Date over (ii) the Class A-4FC Floating Swap Payment for
that Distribution Date.
"Class A-4FC Net Floating Swap Payment": With respect to any
Distribution Date, the excess, if any of (i) the Class A-4FC Floating Swap
Payment for that Distribution Date over (ii) the Class A-4FC Fixed Swap Payment
for that Distribution Date.
"Class A-4FC Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the amount of principal allocated pursuant
to Section 4.01 in respect of the Class A-4FC REMIC II Regular Interest on such
Distribution Date.
"Class A-4FC REMIC II Regular Interest": The uncertificated interest
in REMIC II, designated as "Class A-4FC," constituting a "regular interest" in
REMIC II for purposes of the REMIC Provisions and having the characteristics
attributable thereto in this Agreement.
"Class A-4FC Swap Agreement": With respect to the Class A-4FC
Certificates and the Class A-4FC REMIC II Regular Interest, the applicable
interest rate swap agreement consisting of the ISDA 2002 Master Agreement,
together with the related schedule, confirmation and any annexes thereto, dated
as of December 28, 2005, by and among the Class A-4FC Swap Counterparty and the
Certificate Administrator, solely in its capacity as Certificate Administrator,
on behalf of the Trust, or any replacement interest rate swap agreement entered
into by the Certificate Administrator in accordance with the terms of Section
4.07.
"Class A-4FC Swap Counterparty": Xxxxxxx Xxxxx Capital Services,
Inc. or its successor in interest or any swap counterparty under a replacement
Class A-4FC Swap Agreement.
"Class A-4FC Swap Payment Date": The "Payment Date" within the
meaning of the confirmation under the Class A-4FC Swap Agreement.
"Class A-SB Certificate": Any one of the Certificates with a "Class
A-SB" designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-SB Planned Principal Balance": With respect to any
Distribution Date, the targeted Class Principal Balance of the Class A-SB
Certificates for such Distribution Date set forth on Exhibit S attached hereto.
"Class AJ Certificate": Any one of the Certificates with a "Class
AJ" designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class AM Certificate": Any one of the Certificates with a "Class
AM" designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class B Certificate": Any one of the Certificates with a "Class B"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class C Certificate": Any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class D Certificate": Any one of the Certificates with a "Class D"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class E Certificate": Any one of the Certificates with a "Class E"
designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class F Certificate": Any one of the Certificates with a "Class F"
designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class G Certificate": Any one of the Certificates with a "Class G"
designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class H Certificate": Any one of the Certificates with a "Class H"
designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class J Certificate": Any one of the Certificates with a "Class J"
designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class K Certificate": Any one of the Certificates with a "Class K"
designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class L Certificate": Any one of the Certificates with a "Class L"
designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class M Certificate": Any one of the Certificates with a "Class M"
designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class N Certificate": Any one of the Certificates with a "Class N"
designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class P Certificate": Any one of the Certificates with a "Class P"
designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class Principal Balance": The aggregate principal balance of any
Class of Sequential Pay Certificates, the Class A-3FL REMIC II Regular Interest
or the Class A-4FC REMIC II Regular Interest, as the case may be, outstanding
from time to time. As of the Closing Date, the Class Principal Balance of each
Class of Sequential Pay Certificates, the Class A-3FL REMIC II Regular Interest
and the Class A-4FC REMIC II Regular Interest shall equal the Original Class
Principal Balance thereof. On each Distribution Date, the Class Principal
Balance of each Class of Sequential Pay Certificates (exclusive of the Class
A-3FL and the Class A-4FC Certificates), the Class A-3FL REMIC II Regular
Interest and the Class A-4FC REMIC II Regular Interest shall be reduced by the
amount of any distributions of principal made thereon on such Distribution Date
pursuant to Section 4.01 or 9.01, as applicable, and shall be further reduced by
the amount of any Realized Losses and Additional Trust Fund Expenses allocated
thereto on such Distribution Date pursuant to the first paragraph of Section
4.04(a). The respective Class Principal Balances of the various classes of
Sequential Pay Certificates (exclusive of the Class A-3FL and the Class A-4FC
Certificates), the Class A-3FL REMIC II Regular Interest and the Class A-4FC
REMIC II Regular Interest shall be increased, as and to the extent and in the
order provided in the second paragraph of Section 4.04(a) in connection with any
recoveries of Nonrecoverable Advances and/or interest thereon which were
reimbursed and/or paid in a prior Collection Period from the principal portion
of general collections on the Mortgage Pool and which are included in the
Principal Distribution Amount for the current Distribution Date; provided that
the Class Principal Balance of any such Class of Sequential Pay Certificates,
the Class A-3FL REMIC II Regular Interest and the Class A-4FC REMIC II Regular
Interest shall in no event be increased by more than the amount of unreimbursed
Realized Losses and Additional Trust Fund Expenses previously allocated thereto
(which unreimbursed Realized Losses and Additional Trust Fund Expenses shall be
reduced by the amount of the increase in such Class Principal Balance); and
provided, further, that the aggregate increase in the Class Principal Balances
of the respective Classes of Sequential Pay Certificates (exclusive of the Class
A-3FL and the Class A-4FC Certificates), the Class A-3FL REMIC II Regular
Interest and the Class A-4FC REMIC II Regular Interest on any Distribution Date
shall not exceed the excess, if any, of (i) the aggregate Stated Principal
Balance of, and all Unliquidated Advances with respect to, the Mortgage Pool
that will be outstanding immediately following such Distribution Date, over (ii)
the aggregate of the Class Principal Balances of the respective Classes of
Sequential Pay Certificates (exclusive of the Class A-3FL and the Class A-4FC
Certificates), the Class A-3FL REMIC II Regular Interest and the Class A-4FC
REMIC II Regular Interest outstanding immediately following the distributions to
be made on such Distribution Date, but prior to any such increase in any of
those Class Principal Balances. Distributions in respect of a reimbursement of
Realized Losses and Additional Trust Fund Expenses previously allocated to a
Class of Sequential Pay Certificates, the Class A-3FL REMIC II Regular Interest
and the Class A-4FC REMIC II Regular Interest, as the case may be, shall not
constitute distributions of principal and shall not result in reduction of the
related Class Principal Balance. The Class Principal Balance of the Class A-3FL
Certificates shall at all times equal the Class Principal Balance of the Class
A-3FL REMIC II Regular Interest. The Class Principal Balance of the Class A-4FC
Certificates shall at all times equal the Class Principal Balance of the Class
A-4FC REMIC II Regular Interest.
"Class Q Certificate": Any one of the Certificates with a "Class Q"
designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class R-I Certificate": Any one of the Certificates with a "Class
R-I" designation on the face thereof, substantially in the form of Exhibit A-7
attached hereto, and evidencing the sole class of "residual interests" in REMIC
I for purposes of the REMIC Provisions.
"Class R-II Certificate": Any one of the Certificates with a "Class
R-II" designation on the face thereof, substantially in the form of Exhibit A-7
attached hereto, and evidencing the sole class of "residual interests" in REMIC
II for purposes of the REMIC Provisions.
"Class X Certificate": Any one of the Certificates with a "Class X"
designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class X Component": Any of the 24 components of the Class X
Certificates listed in the following table:
Class
Designation of
Class X Corresponding
Component Certificates
--------- ------------
X-X-0 X-0
X-X-0 X-0
X-X-0 X-0
X-X-0XX A-3FL
X-A-1A A-1A
X-A-SB A-SB
X-A-4 A-4
X-A-4FC A-4FC
X-AM AM
X-AJ AJ
X-B B
X-C C
X-D D
X-E E
X-F F
X-G G
X-H H
X-J J
X-K K
X-L L
X-M M
X-N N
X-P P
X-Q Q
"Class X Notional Amount": With respect to the Class X Certificates
and any date of determination, the sum of the then Component Notional Amounts of
all of the Class X Components.
"Class X Strip Rate": With respect to any Class X Component for any
Distribution Date, a rate per annum equal to (i) the Weighted Average Net
Mortgage Pass-Through Rate for such Distribution Date, minus (ii) the
Pass-Through Rate for the Corresponding Certificates (or, in the case of the
Class A-3FL Certificates, for the Class A-3FL REMIC II Regular Interest and, in
the case of the Class A-4FC Certificates, for the Class A-4FC REMIC II Regular
Interest) for such Distribution Date. In no event, however, shall any Class X
Strip Rate be less than zero.
"Class Z Certificate": Any one of the Certificates with a "Class Z"
designation on the face thereof, substantially in the form of Exhibit A-8
attached hereto, and evidencing a proportionate interest in Grantor Trust Z.
"Closing Date": December 28, 2005.
"Closing Date Deposit": With respect to LaSalle Bank National
Association, a cash amount to be deposited by such Mortgage Loan Seller (or on
its behalf), pursuant to the LaSalle Mortgage Loan Purchase Agreement, in
respect of each Trust Mortgage Loan (that is one of the Trust Mortgage Loans
identified as loan numbers 19, 20, 24 and 86 on the Mortgage Loan Schedule) sold
by such Mortgage Loan Seller to the Depositor that does not have its first
Scheduled Payment due until February 1, 2006, which cash amount represents the
aggregate amount of interest that would have accrued during the entire month of
December 2005 at the related Net Mortgage Rate on the Cut-off Date Balance of
that Trust Mortgage Loan. The Closing Date Deposit for each of the Trust
Mortgage Loans identified in the preceding sentence is $86,682.73, $85,689.23,
$90,088.76 and $22,522.19, respectively.
"Closing Date Deposit Mortgage Loan": Any Trust Mortgage Loan in
respect of which a Closing Date Deposit is required to be made by the related
Mortgage Loan Seller pursuant to the applicable Mortgage Loan Purchase
Agreement.
"CMSA": The Commercial Mortgage Securities Association, or any
association or organization that is a successor thereto. If neither such
association nor any successor remains in existence, "CMSA" shall be deemed to
refer to such other association or organization as may exist whose principal
membership consists of servicers, trustees, issuers, placement agents and
underwriters generally involved in the commercial mortgage loan securitization
industry, which is the principal such association or organization in the
commercial mortgage loan securitization industry and one of whose principal
purposes is the establishment of industry standards for reporting
transaction-specific information relating to commercial mortgage-backed
pass-through certificates and commercial mortgage-backed bonds and the
commercial mortgage loans and foreclosed properties underlying or backing them
to investors holding or owning such certificates or bonds, and any successor to
such other association or organization. If an organization or association
described in one of the preceding sentences of this definition does not exist,
"CMSA" shall be deemed to refer to such other association or organization as
shall be selected by the Master Servicer and reasonably acceptable to the
Trustee, the Certificate Administrator, the Special Servicer and the Controlling
Class Representative.
"CMSA Advance Recovery Report": A report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Advance Recovery Report" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage-backed securities transactions generally and is reasonably
acceptable to the Master Servicer and the Special Servicer.
"CMSA Bond Level File": The monthly report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Bond Level File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage-backed securities transactions generally and is reasonably
acceptable to the Certificate Administrator.
"CMSA Collateral Summary File": A report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Collateral Summary File" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage-backed securities transactions generally and is reasonably
acceptable to the Master Servicer, the Special Servicer and the Trustee.
"CMSA Comparative Financial Status Report": A report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Comparative Financial Status Report" available as of the Closing
Date on the CMSA Website, or such other form for the presentation of such
information and containing such additional information as may from time to time
be recommended by the CMSA for commercial mortgage-backed securities
transactions generally and is reasonably acceptable to the Master Servicer and
the Special Servicer.
"CMSA Delinquent Loan Status Report": A report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Delinquent Loan Status Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage-backed securities transactions generally and
is reasonably acceptable to the Master Servicer and the Special Servicer.
"CMSA Financial File": A report substantially in the form of, and
containing the information called for in, the downloadable form of the
"Financial File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage-backed securities transactions generally and is reasonably
acceptable to the Master Servicer and the Special Servicer.
"CMSA Historical Liquidation Report": A report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Historical Liquidation Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage-backed securities transactions generally and
is reasonably acceptable to the Master Servicer and the Special Servicer.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report": A report substantially in the form of, and containing the information
called for in, the downloadable form of the "Historical Loan Modification and
Corrected Mortgage Loan Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage-backed securities transactions generally and
is reasonably acceptable to the Master Servicer and the Special Servicer.
"CMSA Loan Level Reserve/LOC Report": A report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Loan Level Reserve Report" on the CMSA Website, or in such other form for
the presentation of such information and containing such additional information
as may from time to time be recommended by the CMSA for commercial mortgage
securities transactions generally and is reasonably acceptable to the Master
Servicer and the Special Servicer.
"CMSA Loan Periodic Update File": The monthly report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Loan Periodic Update File" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage-backed securities transactions generally and
is reasonably acceptable to the Master Servicer, the Special Servicer and the
Certificate Administrator.
"CMSA Loan Setup File": A report substantially in the form of, and
containing the information called for in, the downloadable form of the "Loan
Setup File" available as of the Closing Date on the CMSA Website, or such other
form for the presentation of such information and containing such additional
information as may from time to time be recommended by the CMSA for commercial
mortgage-backed securities transactions generally and is reasonably acceptable
to the Master Servicer and the Special Servicer.
"CMSA NOI Adjustment Worksheet": A report substantially in the form
of, and containing the information called for in, the downloadable form of the
"NOI Adjustment Worksheet" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage-backed securities transactions generally, and in any event,
shall present the computations made in accordance with the methodology described
in such form to "normalize" the full year net operating income, net cash flow
and debt service coverage numbers used in the other reports required by this
Agreement and is reasonably acceptable to the Master Servicer and the Special
Servicer.
"CMSA Operating Statement Analysis Report": A report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Operating Statement Analysis Report" available as of the Closing
Date on the CMSA Website or in such other form for the presentation of such
information and containing such additional information as may from time to time
be recommended by the CMSA for commercial mortgage-backed securities
transactions generally and is reasonably acceptable to the Master Servicer and
the Special Servicer.
"CMSA Property File": A report substantially in the form of, and
containing the information called for in, the downloadable form of the "Property
File" available as of the Closing Date on the CMSA Website, or such other form
for the presentation of such information and containing such additional
information as may from time to time be recommended by the CMSA for commercial
mortgage-backed securities transactions generally and is reasonably acceptable
to the Master Servicer and the Special Servicer.
"CMSA Reconciliation of Funds Report": A report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Reconciliation of Funds Report" available as of the Closing Date on the
CMSA Website, or in such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage-backed securities transactions generally and
is reasonably acceptable to the Master Servicer and the Special Servicer.
"CMSA REO Status Report": A report substantially in the form of, and
containing the information called for in, the downloadable form of the "REO
Status Report" available on the CMSA Website, or in such other form for the
presentation of such information and containing such additional information as
may from time to time be recommended by the CMSA for commercial mortgage
securities transactions generally and is reasonably acceptable to the Master
Servicer and the Special Servicer.
"CMSA Servicer Watch List": A report substantially in the form of,
and containing the information called for in, the downloadable form of the
"Servicer Watch List" available as of the Closing Date on the CMSA Website, or
in such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage-backed securities transactions generally and is reasonably
acceptable to the Master Servicer and the Special Servicer.
"CMSA Special Servicer Loan File": A report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Special Servicer Loan File" on the CMSA Website, or in such other form for
the presentation of such information and containing such additional information
as may from time to time be recommended by the CMSA for commercial mortgage
securities transactions generally and is reasonably acceptable to the Master
Servicer and the Special Servicer.
"CMSA Website": The CMSA's website located at "xxx.xxxx.xxx" or such
other primary website as the CMSA may establish for dissemination of its report
forms.
"Code": The Internal Revenue Code of 1986, as amended, and
applicable temporary or final regulations of the U.S. Department of the Treasury
promulgated thereunder.
"Collection Account": One or more segregated accounts created and
maintained by the Master Servicer pursuant to Section 3.04(a) on behalf of the
Trustee in trust for the Certificateholders, which shall be entitled: "GMAC
Commercial Mortgage Corporation, as Master Servicer for Xxxxx Fargo Bank, N.A.,
as Trustee, on behalf of and in trust for the registered holders of Xxxxxxx
Xxxxx Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
2005-LC1."
"Collection Period": Individually and collectively, as the context
may require: with respect to any Distribution Date and each Mortgage Loan and
any successor REO Loan, the period commencing on the day immediately following
the related Determination Date for such Mortgage Loan for the preceding
Distribution Date (or, in the case of the initial Distribution Date, commencing
immediately following the Cut-off Date) and ending on and including the related
Determination Date for such Mortgage Loan for the subject Distribution Date. For
the purposes of this Agreement, with respect to any Distribution Date, the
Collection Period that corresponds to that Distribution Date (including, for
example, but without limitation, references to "the related Collection Period")
shall mean the Collection Periods (determined in accordance with the preceding
sentence) ending in the month in which such Distribution Date occurs that are
applicable to the Merrill Trust Mortgage Loans, the Countrywide Trust Mortgage
Loans and/or the LaSalle Trust Mortgage Loans, as applicable.
"Component Notional Amount": With respect to each Class X Component
and any date of determination, an amount equal to the then REMIC I Principal
Balance of its Corresponding REMIC I Regular Interest.
"Controlling Class": As of any date of determination, the most
subordinate Class of Sequential Pay Certificates (based on the payment
priorities set forth in Section 4.01(a)) that has a Class Principal Balance that
is greater than 25% of the Original Class Principal Balance thereof (without
considering any Appraisal Reduction Amounts); provided, however, that if no
Class of Sequential Pay Certificates has a Class Principal Balance that
satisfies such requirement, then the Controlling Class shall be the most
subordinate outstanding Class of Sequential Pay Certificates (based on the
payment priorities set forth in Section 4.01(a)) with a Class Principal Balance
greater than zero. With respect to determining and exercising the rights of the
Controlling Class, the Class A Senior Certificates shall collectively be deemed
a single Class of Certificates. The initial Controlling Class will be the Class
Q Certificates.
"Controlling Class Representative": As defined in Section 3.25.
"Corporate Trust Office": The principal corporate trust office of
the Trustee or the Certificate Administrator, as applicable, at which at any
particular time the Trustee's or the Certificate Administrator's respective
corporate trust businesses with respect to this Agreement shall be administered.
With respect to the Trustee, the Corporate Trust Office at the date of the
execution of this Agreement is located at 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxx 00000-0000, Attention: Corporate Trust Services--Xxxxxxx Xxxxx Mortgage
Investors, Inc. 2005-LC1. With respect to the Certificate Administrator, the
Corporate Trust Office at the date of the execution of this Agreement is located
at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention:
Global Securities and Trust Services Group--Xxxxxxx Xxxxx Mortgage Trust
2005-LC1, Commercial Mortgage Pass-Through Certificates, Series 2005-LC1.
"Corrected Mortgage Loan": Any Serviced Mortgage Loan that had been
a Specially Serviced Mortgage Loan but has ceased to be a Specially Serviced
Mortgage Loan in accordance with the definition of "Specially Serviced Mortgage
Loan."
"Corresponding Certificates": With respect to any REMIC I Regular
Interest, the Class of Sequential Pay Certificates, the Class A-3FL REMIC II
Regular Interest or the Class A-4FC REMIC II Regular Interest for which such
REMIC I Regular Interest is the Corresponding REMIC I Regular Interest.
"Corresponding REMIC I Regular Interest": As defined in the
Preliminary Statement with respect to any Class of Sequential Pay Certificates.
With respect to the Class A-3FL REMIC II Regular Interest, REMIC I Regular
Interest LA-3FL. With respect to the Class A-4FC REMIC II Regular Interest,
REMIC I Regular Interest LA-4FC. With respect to any Class X Component, the
REMIC I Regular Interest that, with the replacement of "L" with "X" at the
beginning of its designation, has the same alphabetic or alphanumeric
designation as such Class X Component.
"Countrywide": Countrywide Commercial Real Estate Finance, Inc., a
California corporation, or its successor in interest.
"Countrywide Mortgage Loan Purchase Agreement": That certain
mortgage loan purchase agreement, dated as of December 16, 2005, between the
Depositor and Countrywide and relating to the transfer of the Countrywide Trust
Mortgage Loans to the Depositor.
"Countrywide Securities": Countrywide Securities Corporation, a
California corporation, or its successor in interest.
"Countrywide Trust Mortgage Loans": Each of the Mortgage Loans
transferred and assigned to the Depositor pursuant to the Countrywide Mortgage
Loan Purchase Agreement.
"CPI Index Rate": The rate specified in Section 1.04(a) or the rate
calculated by the Certificate Administrator in accordance with Section 1.04(b),
as applicable under the circumstances.
"CPI Index Reset Date": For purposes of calculating the CPI Index
Rate in any particular calendar month, the second Business Day prior to the
commencement of the Interest Accrual Period in such calendar month
"Crossed Loan": As defined in Section 2.03(a). The Mortgage Loans
comprising a Loan Combination shall not be deemed to be Crossed Loans for
purposes of this Agreement.
"Crossed Loan Group": As defined in Section 2.03(a).
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor, a Mortgage Loan Seller or an Affiliate of the
Depositor or a Mortgage Loan Seller. If no such custodian has been appointed or
if such custodian has been so appointed, but the Trustee shall have terminated
such appointment, then the Trustee shall be the Custodian.
"Cut-off Date": Individually and collectively, as the context may
require: with respect to each Mortgage Loan with a Due Date in December 2005,
the related Due Date of such Mortgage Loan in December 2005; or, with respect to
any Mortgage Loan that was originated in November 2005 and has the Due Date of
its first Scheduled Payment in January 2006, December 1, 2005; or, with respect
to any Mortgage Loan that was originated in December 2005 and has the Due Date
of its first Scheduled Payment in February 2006, the date of origination.
"Cut-off Date Balance": With respect to any Mortgage Loan, the
outstanding principal balance of such Mortgage Loan as of the Cut-off Date,
after application of all unscheduled payments of principal received on or before
such date and the principal component of all Periodic Payments due on or before
such date, whether or not received.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan, as
of any date of determination, the ratio of (x) the annualized Net Operating
Income (before payment of any debt service on such Mortgage Loan generated by
the related Mortgaged Property during the most recently ended period of not less
than six months and not more than twelve months for which financial statements,
if available (whether or not audited) have been received by or on behalf of the
related Mortgage Loan Seller (prior to the Closing Date or, in the case of a
Qualified Substitute Mortgage Loan, prior to the relevant date of determination)
or the Master Servicer or the Special Servicer or, in the case of the Glendale
Galleria Trust Mortgage Loan, the MLMT Series 2005-CKI1 Applicable Servicer
(following the Closing Date), to (y) twelve times the amount of the Periodic
Payment in effect for such Mortgage Loan as of such date of determination or, in
the case of the Glendale Galleria Trust Mortgage Loan, twelve times the amount
of the aggregate Periodic Payment in effect for the Glendale Galleria Trust
Mortgage Loan and the Glendale Galleria Pari Passu Non-Trust Loan as of such
date of determination.
"Default Charges": Penalty Interest and/or late payment charges that
are paid or payable, as the context may require, in respect of any Mortgage Loan
or REO Loan.
"Defaulted Mortgage Loan": A Serviced Mortgage Loan: (i) that is (A)
delinquent 60 days or more in respect of a Periodic Payment (not including the
Balloon Payment) or (B) delinquent one day in respect of its Balloon Payment or,
if the Master Servicer receives, prior to the Due Date of such Balloon Payment,
written evidence from an institutional lender of such lender's binding
commitment to refinance such Mortgage Loan, for such longer period beyond the
Due Date ending on the earlier of (1) 60 days after the Due Date of such Balloon
Payment and (2) the expiration of the refinancing commitment, in either case
such delinquency to be determined (except as otherwise provided above) without
giving effect to any grace period permitted by the related Mortgage or Mortgage
Note and without regard to any acceleration of payments under the related
Mortgage and Mortgage Note; or (ii) as to which the Special Servicer has, by
written notice to the related Mortgagor, accelerated the maturity of the
indebtedness evidenced by the related Mortgage Note.
"Defaulting Party": As defined in Section 7.01(b).
"Defeasance Collateral": With respect to any Defeasance Loan, the
United States government obligations required or permitted to be pledged in lieu
of prepayment pursuant to the terms thereof.
"Defeasance Loan": Any Mortgage Loan which permits or requires the
related Mortgagor (or permits the holder of such Mortgage Loan to require the
related Mortgagor) to pledge Defeasance Collateral to such holder in lieu of
prepayment.
"Deficient Valuation": With respect to any Mortgage Loan, a
valuation by a court of competent jurisdiction of the Mortgaged Property in an
amount less than (i) in the case of a Trust Mortgage Loan other than the
Glendale Galleria Trust Mortgage Loan, the then outstanding principal balance of
such Mortgage Loan, and (ii) in the case of the Glendale Galleria Trust Mortgage
Loan, the then-aggregate outstanding principal balance of such Mortgage Loan and
the Glendale Galleria Pari Passu Non-Trust Loan, which valuation results from a
proceeding initiated under the Bankruptcy Code.
"Definitive Certificates": As defined in Section 5.03(a).
"Definitive Non-Registered Certificate": Any Definitive Certificate
that is a Non-Registered Certificate.
"Depositor": Xxxxxxx Xxxxx Mortgage Investors, Inc. or its successor
in interest.
"Depository": The Depository Trust Company, or any successor
depository hereafter named as contemplated by Section 5.03(c). The nominee of
the initial Depository for purposes of registering those Certificates that are
to be Book-Entry Certificates, is Cede & Co. The Depository shall at all times
be a "clearing corporation" as defined in Section 8-102(3) of the Uniform
Commercial Code of the State of New York and a "clearing agency" registered
pursuant to the provisions of Section 17A of the Securities Exchange Act of
1934, as amended.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Determination Date": For any Distribution Date, (i) with respect to
each Mortgage Loan that has a Due Date on or prior to the fourth Business Day
prior to such Distribution Date, the fourth Business Day prior to such
Distribution Date, (ii) with respect to the Glendale Galleria Trust Mortgage
Loan, the Glendale Galleria Early Remittance Date and (iii) with respect to each
other Mortgage Loan, the Due Date for such Mortgage Loan in the month in which
such Distribution Date occurs. For the purposes of this Agreement, with respect
to any Distribution Date, the "Determination Date" that corresponds to that
Distribution Date (including, for example, but without limitation, references to
"the related Determination Date") shall mean the Determination Dates (determined
in accordance with the preceding sentence) occurring in the same month as such
Distribution Date that are applicable to the Mortgage Pool.
"Determination Information": As defined in Section 3.18(b).
"Directly Operate": With respect to any Administered REO Property,
the furnishing or rendering of services to the tenants thereof, the management
of such Administered REO Property, the holding of such Administered REO Property
primarily for sale to customers or the performance of any construction work
thereon, in each case other than through an Independent Contractor; provided,
however, that the Trustee (or the Special Servicer or any Sub-Servicer on behalf
of the Trustee) shall not be considered to Directly Operate an Administered REO
Property solely because the Trustee (or the Special Servicer or any Sub-Servicer
on behalf of the Trustee) establishes rental terms, chooses tenants, enters into
or renews leases, deals with taxes and insurance, or makes decisions as to
repairs or capital expenditures with respect to such Administered REO Property.
"Discount Rate": With respect to any prepaid Trust Mortgage Loan or
Trust REO Loan for purposes of allocating any Prepayment Premium or Yield
Maintenance Charge received thereon or with respect thereto among the respective
Classes of the Sequential Pay Certificates (other than any Excluded Class
thereof), the Class A-3FL REMIC II Regular Interest and the Class A-4FC REMIC II
Regular Interest, an amount equal to the discount rate stated in the Mortgage
Loan documents related to such Trust Mortgage Loan or Trust REO Loan used in
calculating the related Prepayment Premium or Yield Maintenance Charge; provided
that, if a discount rate is not stated thereon, the "Discount Rate" will be an
amount equal to the yield (when compounded monthly) on the U.S. Treasury issue
(primary issue) with a maturity date closest to the maturity date or Anticipated
Repayment Date, as applicable, for such prepaid Trust Mortgage Loan or Trust REO
Loan. In the event there are two or more such U.S. Treasury issues (a) with the
same coupon, the issue with the lowest yield shall apply, and (b) with maturity
dates equally close to the maturity date or Anticipated Repayment Date, as
applicable, for the prepaid Trust Mortgage Loan or Trust REO Loan, the issue
with the earliest maturity date shall apply.
"Disqualified Non-United States Tax Person": With respect to any
Residual Certificate, any Non-United States Tax Person or agent thereof other
than: (1) a Non-United States Tax Person that (a) holds such Residual
Certificate and, for purposes of Treasury Regulations Section 1.860G-3(a)(3), is
subject to tax under Section 882 of the Code, (b) certifies that it understands
that, for purposes of Treasury regulations Section 1.860E-1(c)(4)(ii), as a
holder of such Residual Certificate for United States federal income tax
purposes, it may incur tax liabilities in excess of any cash flows generated by
such Residual Certificate and intends to pay taxes associated with holding such
Residual Certificate, and (c) has furnished the Transferor and the Certificate
Administrator with an effective IRS Form W-8ECI or successor form and has agreed
to update such form as required under the applicable Treasury regulations; or
(2) a Non-United States Tax Person that has delivered to the Transferor and the
Certificate Registrar an opinion of nationally recognized tax counsel to the
effect that (x) the Transfer of such Residual Certificate to it is in accordance
with the requirements of the Code and the regulations promulgated thereunder and
(y) such Transfer of such Residual Certificate will not be disregarded for
United States federal income tax purposes.
"Disqualified Organization": (i) the United States, any State or
political subdivision thereof, a foreign government, an international
organization, or any agency or instrumentality of any of the foregoing, (ii) any
organization (other than certain farmers' cooperatives described in Section 521
of the Code) that is exempt from the tax imposed by Chapter 1 of the Code
(including the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iii) rural electric and telephone cooperatives described in
Section 1381 of the Code and (iv) any other Person so designated by the
Certificate Administrator or the REMIC Administrator based upon an Opinion of
Counsel that the holding of an Ownership Interest in a Residual Certificate by
such Person may cause the Trust or any Person having an Ownership Interest in
any Class of Certificates (other than such Person) to incur a liability for any
federal tax imposed under the Code that would not otherwise be imposed but for
the Transfer of an Ownership Interest in a Residual Certificate to such Person.
The terms "United States," "State" and "international organization" shall have
the meanings set forth in Section 7701 of the Code or successor provisions.
"Disqualified Partnership": Any domestic entity classified as a
partnership under the Code, if any of its beneficial owners are Disqualified
Non-United States Tax Persons.
"Distributable Certificate Interest": With respect to any Class of
Regular Certificates (exclusive of the Class A-3FL and the Class A-4FC
Certificates), the Class A-3FL REMIC II Regular Interest or the Class A-4FC
REMIC II Regular Interest for any Distribution Date, the Accrued Certificate
Interest in respect of such Class of Certificates, the Class A-3FL REMIC II
Regular Interest or the Class A-4FC REMIC II Regular Interest, as the case may
be, for such Distribution Date, reduced (other than with respect to the Class X
Certificates) (to not less than zero) by the product of (a) any Net Aggregate
Prepayment Interest Shortfall for such Distribution Date, multiplied by (b) a
fraction, expressed as a decimal, the numerator of which is the Accrued
Certificate Interest in respect of the subject Class of Certificates, the Class
A-3FL REMIC II Regular Interest or the Class A-4FC REMIC II Regular Interest, as
the case may be, for such Distribution Date, and the denominator of which is the
aggregate Accrued Certificate Interest in respect of all the Classes of
Sequential Pay Certificates (exclusive of the Class A-3FL and the Class A-4FC
Certificates), the Class A-3FL REMIC II Regular Interest and the Class A-4FC
REMIC II Regular Interest, as the case may be, for such Distribution Date;
provided that, if the aggregate Class Principal Balance of the Sequential Pay
Certificates (exclusive of the Class A-3FL and the Class A-4FC Certificates),
the Class A-3FL REMIC II Regular Interest and the Class A-4FC REMIC II Regular
Interest is reduced as a result of a Realized Loss caused by a diversion of
principal collections on the Mortgage Pool to reimburse Nonrecoverable Advances
and/or pay interest thereon as contemplated by Section 1.02, and if there is a
subsequent recovery of such amounts that results in the reinstatement of the
Class Principal Balance of any one or more Classes of Sequential Pay
Certificates (exclusive of the Class A-3FL and the Class A-4FC Certificates),
the Class A-3FL REMIC II Regular Interest and/or the Class A-4FC REMIC II
Regular Interest as provided in the definition of "Class Principal Balance,"
then the amount of Distributable Certificate Interest with respect to each such
Class of Regular Certificates, the Class A-3FL REMIC II Regular Interest or the
Class A-4FC REMIC II Regular Interest for the next succeeding Distribution Date
shall be increased by the amount of any and all additional Distributable
Certificate Interest that would have been payable with respect to the subject
Class of Regular Certificates, the Class A-3FL REMIC II Regular Interest or the
Class A-4FC REMIC II Regular Interest if such diversion of principal and the
corresponding allocation of a Realized Loss (up to the amount of the reinstated
balances) had not occurred.
"Distribution Account": The segregated account or accounts created
and maintained by the Certificate Administrator pursuant to Section 3.04(b)
which shall be entitled "LaSalle Bank National Association, as Certificate
Administrator on behalf of Xxxxx Fargo Bank, N.A., as Trustee, in trust for the
registered holders of Xxxxxxx Xxxxx Mortgage Trust 2005-LC1, Commercial Mortgage
Pass-Through Certificates, Series 2005-LC1."
"Distribution Date": During any given month, the 12th day of such
month, or if the 12th day is not a Business Day, the next succeeding Business
Day, commencing in January 2006.
"Distribution Date Statement": As defined in Section 4.02(a).
"Document Defect": As defined in Section 2.03(a).
"Due Date": With respect to (i) any Mortgage Loan on or prior to its
Stated Maturity Date, the day of the month set forth in the related Mortgage
Note on which each Periodic Payment on such Mortgage Loan is scheduled to be
first due; (ii) any Mortgage Loan after its Stated Maturity Date, the day of the
month set forth in the related Mortgage Note on which each Periodic Payment on
such Mortgage Loan had been scheduled to be first due; and (iii) any REO Loan,
the day of the month set forth in the related Mortgage Note on which each
Periodic Payment on the related Mortgage Loan had been scheduled to be first
due.
"East Empire Industrial Portfolio A-Note Trust Mortgage Loan": The
A-Note Trust Mortgage Loan identified as loan number 36 on the Mortgage Loan
Schedule and as being secured by the East Empire Industrial Portfolio.
"East Empire Industrial Portfolio B-Note Non-Trust Loan": The B-Note
Non-Trust Loan that relates to the East Empire Industrial Portfolio A-Note Trust
Mortgage Loan.
"Eligible Account": Any of (i) an account maintained with a federal
or state chartered depository institution or trust company, and (a) with respect
to deposits held for 30 days or more in such account, the long-term deposit or
unsecured debt obligations of which are rated at least "AA-" by S&P (or "A-",
provided the short-term unsecured debt obligations are rated at least "A-1" by
S&P)and "Aa3" by Moody's (if then rated by Moody's) (or, with respect to any
such Rating Agency, such lower rating as will not result in an Adverse Rating
Event, as evidenced in writing by the applicable Rating Agency), at any time
such funds are on deposit therein, or (b) with respect to deposits held for less
than 30 days in such account, the short-term deposits of which are rated at
least "A-1" by S&P and "P-1" by Moody's (if then rated by Moody's) (or, with
respect to any such Rating Agency, such lower rating as will not result in an
Adverse Rating Event) as evidenced in writing by the applicable Rating Agency at
any time such funds are on deposit therein, (ii) a segregated trust account or
accounts maintained with a federal or state chartered depository institution or
trust company acting in its fiduciary capacity, which, in the case of a state
chartered depository institution or trust company, is subject to regulations
regarding fiduciary funds on deposit therein substantially similar to 12 C.F.R.
ss. 9.10(b), and the long-term deposits or unsecured obligations of which
federal or state chartered depository institution or trust company (or its
parent entity) are rated at least "Baa3" by Moody's, or (iii) any other account
the use of which would not, in and of itself, cause an Adverse Rating Event, as
confirmed in writing by each Rating Agency.
"Environmental Assessment": A "Phase I assessment" as described in,
and meeting the criteria of, (i) Chapter 5 of the FNMA Multifamily Guide or any
successor provisions covering the same subject matter in the case of a Specially
Serviced Mortgage Loan as to which the related Mortgaged Property is multifamily
property or (ii) the American Society for Testing and Materials in the case of
Specially Serviced Mortgage Loan as to which the related Mortgaged Property is
not multifamily property.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"Escrow Payment": Any payment received by the Master Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and other similar items in respect of the related Mortgaged
Property.
"Event of Default": One or more of the events described in Section
7.01(a).
"Exchange Act": Securities Exchange Act of 1934, as amended.
"Excluded Class": Any Class of Sequential Pay Certificates other
than the Class A-1, Class A-2, Class A-3, Class A-1A, Class A-SB, Class A-4,
Class AM, Class AJ, Class B, Class C, Class D, Class E, Class F, Class G and
Class H Certificates.
"Exemption": Either of Department of Labor Prohibited Transaction
Exemption ("PTE") 90-29 (as amended by XXX 00-00, XXX 0000-00 and PTE 2002-41)
or PTE 2000-55 (as amended by PTE 2000-58 and PTE 2002-41), as each may be
amended from time to time, or any successor thereto, all as issued by the U.S.
Department of Labor.
"Exemption-Favored Party": Any of (i) MLPF&S or Countrywide
Securities, (ii) any Person directly or indirectly, through one or more
intermediaries, controlling, controlled by or under common control with MLPF&S
or Countrywide Securities, and (iii) any member of any underwriting syndicate or
selling group of which any Person described in clauses (i) or (ii) is a manager
or co-manager with respect to a Class of Investment Grade Certificates.
"FDIC": Federal Deposit Insurance Corporation or any successor.
"FHLMC": Federal Home Loan Mortgage Corporation or any successor.
"Final Recovery Determination": A determination by the Special
Servicer with respect to any Specially Serviced Mortgage Loan, Corrected
Mortgage Loan or Administered REO Property (other than a Mortgage Loan or REO
Property, as the case may be, that was purchased or replaced by any of the
Mortgage Loan Sellers pursuant to the applicable Mortgage Loan Purchase
Agreement, or that was purchased by the Plurality Subordinate Certificateholder
or the Special Servicer or any assignee of the foregoing pursuant to Section
3.18, by the related B-Noteholder (in the case of an A-Note Trust Mortgage Loan)
or by a Glendale Galleria Subordinate Noteholder (in the case of the Glendale
Galleria Trust Mortgage Loan) pursuant to the Glendale Galleria Intercreditor
Agreement or by the Master Servicer, the Special Servicer or the Plurality
Subordinate Certificateholder pursuant to Section 9.01) that there has been a
recovery of all Insurance Proceeds, Liquidation Proceeds, REO Revenues and other
payments or recoveries that the Special Servicer has determined, in accordance
with the Servicing Standard, will be ultimately recoverable; provided that the
term "Final Recovery Determination" shall include any comparable determination
made by the MLMT Series 2005-CKI1 Special Servicer pursuant to the MLMT Series
2005-CKI1 Pooling and Servicing Agreement with respect to the Glendale Galleria
Trust Mortgage Loan or any related Glendale Galleria REO Property.
"Floating Rate Account": The segregated accounts or sub-accounts
(which may be sub-accounts of the Distribution Account) created and maintained
by the Certificate Administrator pursuant to Section 3.04(f), in trust for: (i)
in the case of the Class A-3FL Certificates and the Class A-3FL REMIC II Regular
Interest, the holders of Class A-3FL Certificates and the Class A-3FL Swap
Counterparty, as their interests may appear, which shall be entitled "LaSalle
Bank National Association, as Certificate Administrator, on behalf of and in
trust for the registered holders of Xxxxxxx Xxxxx Mortgage Trust 2005-LC1,
Commercial Mortgage Pass-Through Certificates, Series 2005-LC1, Class A-3FL, and
Xxxxxxx Xxxxx Capital Services, Inc., as their interests may appear, Floating
Rate Account"; and (ii) in the case of the Class A-4FC Certificates and the
Class A-4FC REMIC II Regular Interest, the holders of the Class A-4FC
Certificates and the Class A-4FC Swap Counterparty, as their interests may
appear, which shall be entitled "LaSalle Bank National Association, as
Certificate Administrator, on behalf of and in trust for the registered holders
of Xxxxxxx Xxxxx Mortgage Trust 2005-LC1, Commercial Mortgage Pass-Through
Certificates, Series 2005-LC1, Class A-4FC, and Xxxxxxx Xxxxx Capital Services,
Inc., as their interests may appear, Floating Rate Account."
"FNMA": Federal National Mortgage Association, or any successor
thereof.
"Form 8-K": Form 8-K under the Exchange Act and/or any successor or
equivalent form(s) adopted by the Securities and Exchange Commission.
"Form 8-K Current Report": A current report on Form 8-K.
"Form 10-K": Form 10-K under the Exchange Act and/or any successor
or equivalent form(s) adopted by the Securities and Exchange Commission.
"Form 10-K Annual Report": An annual report on Form 10-K.
"Gain-on-Sale Proceeds": With respect to any Trust Mortgage Loan or
Trust REO Loan, the excess, if any, of (i) any and all Liquidation Proceeds
collected with respect to such Mortgage Loan or the related REO Property, as the
case may be, net of any related liquidation expenses, P&I Advances, Servicing
Advances, Principal Recovery Fees, interest on Advances, Master Servicing Fees,
Special Servicing Fees and Additional Trust Fund Expenses, and if applicable,
further net of any portion of such Liquidation Proceeds payable to the related
Non-Trust Noteholder(s) (if any) and, in the case of the Glendale Galleria Trust
Mortgage Loan or any related Glendale Galleria REO Property, to the MLMT Series
2005-CKI1 Applicable Servicer, over (ii) the Purchase Price for such Trust
Mortgage Loan or Trust REO Loan, as the case may be, on the date on which such
Liquidation Proceeds were received.
"Gain-on-Sale Reserve Account": A segregated custodial account
(which may be a sub-account of the Distribution Account) created and maintained
by the Certificate Administrator pursuant to Section 3.04(f) in trust for the
Certificateholders, which shall be entitled "LaSalle Bank National Association,
as Certificate Administrator on behalf of Xxxxx Fargo Bank, N.A., as Trustee, in
trust for the registered holders of Xxxxxxx Xxxxx Mortgage Trust 2005-LC1,
Commercial Mortgage Pass-Through Certificates, Series 2005-LC1, Gain-on-Sale
Reserve Account."
"General Special Servicer": As defined in Section 6.09.
"Glendale Galleria A/B/C Co-Lender Agreement": The Amended and
Restated Co-Lender Agreement, dated as of November 16, 2005, executed between
the holder of the Glendale Galleria Trust Mortgage Loan and the holder of the
Glendale Galleria Pari Passu Non-Trust Loan, collectively, as the lead lenders
under that agreement and the holders of the Glendale Galleria Subordinate
Non-Trust Loans.
"Glendale Galleria Borrower": The entity which is the borrower under
the Glendale Galleria Trust Mortgage Loan.
"Glendale Galleria Control Appraisal Period": A "Note B Appraisal
Reduction Period" or "Note C Appraisal Reduction Period," as applicable, within
the meaning of the Glendale Galleria Intercreditor Agreement.
"Glendale Galleria Controlling Party": The "Directing Co-Lender"
within the meaning of the Glendale Galleria Intercreditor Agreement, which prior
to the commencement of a Glendale Galleria Control Appraisal Period with respect
to each Glendale Galleria Subordinate Non-Trust Loan, shall be the Glendale
Galleria Controlling Subordinate Noteholder, and, following the commencement of
a Glendale Galleria Control Appraisal Period with respect to each Glendale
Galleria Subordinate Non-Trust Loan, shall be the holder of the Glendale
Galleria Pari Passu Non-Trust Mortgage Loan.
"Glendale Galleria Controlling Subordinate Noteholder": As of any
date of determination, the holder of the most junior Glendale Galleria
Subordinate Non-Trust Loan, if any, as to which a Glendale Galleria Control
Appraisal Period has not occurred and is continuing.
"Glendale Galleria Early Remittance Date": One Business Day
preceding each P&I Advance Date commencing in January 2006.
"Glendale Galleria Intercreditor Agreement": Collectively, the
Glendale Galleria Note A Intercreditor Agreement and the Glendale Galleria A/B/C
Co-Lender Agreement.
"Glendale Galleria Loan Combination": Collectively, the Glendale
Galleria Trust Mortgage Loan, the Glendale Galleria Pari Passu Non-Trust Loan
and the Glendale Galleria Subordinate Non-Trust Loans. The term "Glendale
Galleria Loan Combination" shall include any successor REO Loans with respect to
the Glendale Galleria Trust Mortgage Loan, the Glendale Galleria Pari Passu
Non-Trust Loan and the Glendale Galleria Subordinate Non-Trust Loans.
"Glendale Galleria Mortgaged Property": The Mortgaged Property
identified on the Mortgage Loan Schedule as Glendale Galleria.
"Glendale Galleria Non-Trust Loan" Any Glendale Galleria Subordinate
Non-Trust Loan or the Glendale Galleria Pari Passu Non-Trust Loan, as the case
may be.
"Glendale Galleria Note A Intercreditor Agreement": The Note A
Intercreditor Agreement, dated as of November 16, 2005, executed between the
Trust, as holder of the Glendale Galleria Trust Mortgage Loan and the holder of
Glendale Galleria Pari Passu Non-Trust Loan.
"Glendale Galleria Pari Passu Non-Trust Loan": The loan that has an
unpaid principal balance of $153,635,946 as of the cut-off date and is secured
by the same Mortgage encumbering the Glendale Galleria Mortgaged Property as the
Glendale Galleria Trust Mortgage Loan and pari passu in right of payment and
other respects to the Glendale Galleria Trust Mortgage Loan. The Glendale
Galleria Pari Passu Non-Trust Loans shall not be part of the Mortgage Pool and
will not be considered a Trust Mortgage Loan.
"Glendale Galleria Pari Passu Non-Trust Loan Related MBS": Any
securities evidencing an interest in, or secured by, the Glendale Galleria Pari
Passu Non-Trust Loan or any successor REO Loan with respect thereto.
"Glendale Galleria Pari Passu Noteholder": The holder of the
Glendale Galleria Pari Passu Non-Trust Loan.
"Glendale Galleria Pari Passu Non-Trust Loan Securitization
Agreement": Any agreement governing the securitization of the Glendale Galleria
Pari Passu Non-Trust Loan or any successor REO Loan with respect thereto. The
MLMT Series 2005-CKI1 Pooling and Servicing Agreement is the initial Glendale
Galleria Pari Passu Non-Trust Loan Securitization Agreement.
"Glendale Galleria REO Property": With respect to the Glendale
Galleria Loan Combination, the related Loan Combination REO Property.
"Glendale Galleria Subordinate Non-Trust Loan": Each of the Mortgage
Loans, other than the Glendale Galleria Trust Mortgage Loan and the Glendale
Galleria Pari Passu Non-Trust Loan, that are secured by the same Mortgage
encumbering the Glendale Galleria Mortgaged Property as the Glendale Galleria
Trust Mortgage Loan and the Glendale Galleria Pari Passu Non-Trust Loan, and
that are subordinate in right of payment to the Glendale Galleria Trust Mortgage
Loan. The Glendale Galleria Subordinate Non-Trust Loans shall not be part of the
Mortgage Pool and will not be considered Trust Mortgage Loans.
"Glendale Galleria Subordinate Noteholder": Any holder of any
Glendale Galleria Subordinate Non-Trust Loan.
"Glendale Galleria Trust Mortgage Loan": The Mortgage Loan that has
a cut-off date principal balance of $125,702,137 and is secured by a mortgage
encumbering the Glendale Galleria Mortgaged Property and included in the Trust
Fund.
"Global Certificate": With respect to any Class of Book-Entry
Non-Registered Certificates, the related Rule 144A Global Certificate.
"Grantor Trust A-3FL": That certain "grantor trust" (within the
meaning of the Grantor Trust Provisions), the assets of which consist of (i) the
Class A-3FL REMIC II Regular Interest and distributions thereon, (ii) the Class
A-3FL Swap Agreement and, except for the Class A-3FL Depositor's Retained
Amount, payments by the Class A-3FL Swap Counterparty thereunder and (iii) the
applicable sub-account of the Floating Rate Account, intended to be treated as a
"grantor trust" within the meaning of the Grantor Trust Provisions.
"Grantor Trust A-3FL Assets": The segregated pool of assets
comprising Grantor Trust A-3FL.
"Grantor Trust A-4FC": That certain "grantor trust" (within the
meaning of the Grantor Trust Provisions), the assets of which consist of (i) the
Class A-4FC REMIC II Regular Interest and distributions thereon, (ii) the Class
A-4FC Swap Agreement and, except for the Class A-4FC Depositor's Retained
Amount, payments by the Class A-4FC Swap Counterparty thereunder and (iii) the
applicable sub-account of the Floating Rate Account, intended to be treated as a
"grantor trust" within the meaning of the Grantor Trust Provisions.
"Grantor Trust A-4FC Assets": The segregated pool of assets
comprising Grantor Trust A-4FC.
"Grantor Trust Provisions": Subpart E of Part I of subchapter J of
the Code.
"Grantor Trust Z": That certain "grantor trust" (within the meaning
of the Grantor Trust Provisions), the assets of which consist of any Additional
Interest with respect to the Trust ARD Loans and any successor Trust REO Loans
after their respective Anticipated Repayment Dates and amounts held from time to
time in the Collection Account and/or the Additional Interest Account that
represent Additional Interest.
"Grantor Trust Z Assets": The segregated pool of assets comprising
Grantor Trust Z.
"Ground Lease": With respect to any Mortgage Loan for which the
Mortgagor has a leasehold interest in the related Mortgaged Property or space
lease within such Mortgaged Property, the lease agreement creating such
leasehold interest.
"Group 1 Mortgage Loan": Any Trust Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group 1.
"Group 2 Mortgage Loan": Any Trust Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group 2.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to CERCLA or any other federal, state or local environmental
related laws and regulations now existing or hereafter enacted, and specifically
including, without limitation, asbestos and asbestos-containing materials,
polychlorinated biphenyls ("PCBs"), radon gas, petroleum and petroleum products
and urea formaldehyde.
"Holder": A Certificateholder.
"Impound Reserve": As defined in Section 3.16(c).
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Depositor, the Mortgage Loan
Sellers, the Master Servicer, the Special Servicer, the Controlling Class
Representative, the Trustee, the Certificate Administrator and any and all
Affiliates thereof (and, with respect to any Loan Combination, any of the
related Non-Trust Noteholder(s) and any and all Affiliates thereof), (ii) does
not have any direct financial interest in or any material indirect financial
interest in any of the Depositor, the Mortgage Loan Sellers, the Master
Servicer, the Special Servicer, the Controlling Class Representative, the
Trustee, the Certificate Administrator or any Affiliate thereof (or, with
respect to any Loan Combination, any of the related Non-Trust Noteholder(s) or
any Affiliate thereof), and (iii) is not connected with the Depositor, the
Mortgage Loan Sellers, the Master Servicer, the Controlling Class
Representative, the Special Servicer, the Trustee, the Certificate Administrator
or any Affiliate thereof (or, with respect to any Loan Combination, any of the
related Non-Trust Noteholder(s) or any Affiliate thereof) as an officer,
employee, promoter, underwriter, trustee, partner, director or Person performing
similar functions; provided, however, that a Person shall not fail to be
Independent of the Depositor, any Mortgage Loan Seller, the Master Servicer, the
Controlling Class Representative, the Special Servicer, the Trustee, the
Certificate Administrator or any Affiliate thereof (or, with respect to any Loan
Combination, any of the related Non-Trust Noteholder(s) or any Affiliate
thereof) merely because such Person is the beneficial owner of 1% or less of any
class of securities issued by the Depositor, any Mortgage Loan Seller, the
Master Servicer, the Special Servicer, the Controlling Class Representative, the
Trustee, the Certificate Administrator or any Affiliate thereof (or, with
respect to any Loan Combination, any of the related Non-Trust Noteholder(s) or
any Affiliate thereof), as the case may be.
"Independent Appraiser": An Independent professional real estate
appraiser who is a member in good standing of the Appraisal Institute, and, if
the State in which the subject Mortgaged Property is located certifies or
licenses appraisers, certified or licensed in such State, and in each such case,
who has a minimum of five years experience in the subject property type and
market.
"Independent Contractor": (a) Any Person that would be an
"independent contractor" with respect to REMIC I within the meaning of Section
856(d)(3) of the Code if REMIC I were a real estate investment trust (except
that the ownership test set forth in that Section shall be considered to be met
by any Person that owns, directly or indirectly, 35% or more of any Class of
Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall be at no expense to the Master
Servicer, the Special Servicer, the Trustee, the Certificate Administrator or
the Trust Fund, delivered to the Trustee (and, if a Loan Combination is
involved, to the related Non-Trust Noteholder(s)), provided that (i) such REMIC
does not receive or derive any income from such Person and (ii) the relationship
between such Person and such REMIC is at arm's length, all within the meaning of
Treasury Regulations Section 1.856-4(b)(5), or (b) any other Person upon receipt
by the Trustee, the Certificate Administrator and the Master Servicer (and, if a
Loan Combination is involved, by the related Non-Trust Noteholder(s)) of an
Opinion of Counsel, which shall be at no expense to the Master Servicer, the
Special Servicer, the Trustee, the Certificate Administrator or the Trust Fund,
to the effect that the taking of any action in respect of any Administered REO
Property by such Person, subject to any conditions therein specified, that is
otherwise herein contemplated to be taken by an Independent Contractor will not
cause such REO Property to cease to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the
Code, or cause any income realized in respect of such REO Property to fail to
qualify as Rents from Real Property, due to such Person's failure to be treated
as an Independent Contractor.
"Initial Purchaser": Each of MLPF&S, LaSalle Financial Services and
Countrywide Securities.
"Institutional Accredited Investor" or "IAI": An "accredited
investor" as defined in any of paragraphs (1), (2), (3) and (7) of Rule 501(a)
under the Securities Act or any entity in which all of the equity owners come
within such paragraphs.
"Insurance Policy": With respect to any Mortgage Loan, any hazard
insurance policy, flood insurance policy, title policy or other insurance policy
that is maintained from time to time in respect of such Mortgage Loan or the
related Mortgaged Property.
"Insurance Proceeds": Proceeds paid under any Insurance Policy, to
the extent such proceeds are not applied to the restoration of the related
Mortgaged Property, released to the Mortgagor, or any tenants or ground lessors,
as the case may be, pursuant to the terms of the related Mortgage or lease, in
accordance with the Servicing Standard.
"Insured Environmental Event": As defined in Section 3.07(d).
"Interest Accrual Period": With respect to any Distribution Date and
each Class of Certificates (other than the Class A-3FL Certificates prior to a
Class A-3FL Distribution Conversion) and the Class A-3FL REMIC II Regular
Interest and the Class A-4FC REMIC II Regular Interest, the calendar month
immediately preceding the calendar month in which such Distribution Date occurs.
For purposes of determining Class A-3FL Interest Distribution Amounts and Class
A-3FL Floating Swap Payments for any Distribution Date and any Class A-3FL Swap
Payment Date related thereto based upon the confirmation under the related Swap
Agreement, the Interest Accrual Period will begin on and include the 12th day of
the month preceding the month in which the subject Distribution Date occurs (or,
in the case of the first Distribution Date, will begin on and include the
Closing Date) and will end on and include the 11th day of the month in which the
subject Distribution Date occurs; provided that, if a Class A-3FL Distribution
Conversion is in effect with respect to the subject Distribution Date, then the
Interest Accrual Period applicable to the Class A-3FL Interest Distribution
Amount for such Distribution Date will be the same as the Interest Accrual
Period with respect to the Class A-3FL REMIC II Regular Interest for such
Distribution Date. For purposes of determining Class A-4FC Interest Distribution
Amounts and Class A-4FC Floating Swap Payments for any Distribution Date and any
Class A-4FC Swap Payment Date related thereto based upon the confirmation under
the related Swap Agreement, the Interest Accrual Period will at all times be the
calendar month immediately preceding the calendar month in which such
Distribution Date occurs.
"Interest Reserve Account": The segregated account (which may be a
sub-account of the Distribution Account) created and maintained by the
Certificate Administrator pursuant to Section 3.04(c) in trust for
Certificateholders, which shall be entitled "LaSalle Bank National Association,
as Certificate Administrator on behalf of Xxxxx Fargo Bank, N.A., as Trustee, on
behalf of and in trust for the registered holders of Xxxxxxx Xxxxx Mortgage
Trust 2005-LC1, Commercial Mortgage Pass-Through Certificates, Series
2005-LC1--Interest Reserve Account."
"Interest Reserve Amount": With respect to each Interest Reserve
Loan and each Distribution Date that occurs in January of each year subsequent
to 2005, or if a leap year, in February, an amount equal to one day's interest
at the related Net Mortgage Rate on the related Stated Principal Balance as of
the Due Date in the month in which such Distribution Date occurs (but prior to
the application of any amounts owed on such Due Date), to the extent a Periodic
Payment or P&I Advance is made in respect thereof for such Due Date as of the
related P&I Advance Date, in the case of a Periodic Payment, or as of the
related Distribution Date, in the case of a P&I Advance.
"Interest Reserve Loan": Each Trust Mortgage Loan that is an
Actual/360 Mortgage Loan and each Trust REO Loan that relates to an Actual/360
Mortgage Loan.
"Interested Person": The Depositor, the Mortgage Loan Seller, the
Master Servicer, the Special Servicer, any Independent Contractor hired by the
Special Servicer, any related Non-Trust Noteholder, any Holder of a Certificate
or any Affiliate of any such Person.
"Internet Website": Either the Internet website maintained by the
Certificate Administrator (located at "xxx.xxxxxxxx.xxx" or such other address
as provided to the parties hereto from time to time) or the Internet website
maintained by the Master Servicer, as the case may be.
"Investment Account": As defined in Section 3.06(a).
"Investment Grade Certificate": As of any date of determination, a
Certificate that is rated in one of the four highest generic rating categories
by at least one Rating Agency.
"Investment Period": With respect to any Distribution Date and (i)
each of the Collection Account, any Servicing Account, any Reserve Account, any
REO Account and any Loan Combination Custodial Account, the related Collection
Period and (ii) each of the Distribution Account, the Interest Reserve Account,
the Floating Rate Account, the Additional Interest Account and the Gain-on-Sale
Reserve Account, the related Certificate Administrator Investment Period.
"Investor Based Exemption": Any of Prohibited Transaction Class
Exemption ("PTCE") 84-14 (for transactions by independent "qualified
professional asset managers"), PTCE 91-38 (for transactions by bank collective
investment funds), XXXX 00-0 (for transactions by insurance company pooled
separate accounts), PTCE 95-60 (for transactions by insurance company general
accounts) or PTCE 96-23 (for transactions effected by "in-house asset
managers"), or any comparable exemption available under Similar Law.
"LaSalle Bank": LaSalle Bank National Association, a national
banking association or its successor in interest.
"LaSalle Financial Services": LaSalle Financial Services, Inc., a
Delaware corporation, or its successor in interest.
"LaSalle Mortgage Loan Purchase Agreement": That certain mortgage
loan purchase agreement, dated as of December 16, 2005, between the Depositor
and LaSalle Bank and relating to the transfer of the LaSalle Trust Mortgage
Loans to the Depositor.
"LaSalle Trust Mortgage Loans": Each of the Trust Mortgage Loans
transferred and assigned to the Depositor pursuant to the LaSalle Mortgage Loan
Purchase Agreement.
"Late Collections": With respect to any Mortgage Loan, all amounts
received thereon during any Collection Period, other than Penalty Interest,
whether as payments, Insurance Proceeds, Liquidation Proceeds or otherwise,
which represent late collections of the principal and/or interest portions of a
Scheduled Payment (other than a Balloon Payment) or an Assumed Periodic Payment
in respect of such Mortgage Loan due or deemed due on a Due Date in a previous
Collection Period, and not previously recovered. With respect to any REO Loan,
all amounts received in connection with the related REO Property during any
Collection Period, other than Penalty Interest, whether as Insurance Proceeds,
Liquidation Proceeds, REO Revenues or otherwise, which represent late
collections of the principal and/or interest portions of a Scheduled Payment
(other than a Balloon Payment) or an Assumed Periodic Payment in respect of the
predecessor Mortgage Loan or of an Assumed Periodic Payment in respect of such
REO Loan due or deemed due on a Due Date in a previous Collection Period and not
previously recovered.
"LIBOR": The rate specified in Section 1.03(a) or the rate
calculated by the Certificate Administrator in accordance with Section 1.03(b),
as applicable under the circumstances.
"LIBOR Business Day": Any day on which commercial banks are open for
general business (including dealings in foreign exchange and foreign currency
deposits) in London, England and/or New York, New York.
"LIBOR Determination Date": For purposes of calculating LIBOR in any
particular calendar month, the second LIBOR Business Day prior to
the commencement of the Interest Accrual Period in such calendar month; provided
that, to the extent that the calculation of LIBOR in accordance with Section
1.03(b) requires a determination made as of New York City time, the subject
LIBOR Determination Date must be a day on which commercial banks are open for
general business (including dealings in foreign exchange and foreign currency
deposits) in London, England and New York, New York.
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made with respect to such Mortgage Loan; (iii) such Mortgage
Loan is repurchased or replaced by a Mortgage Loan Seller pursuant to the
applicable Mortgage Loan Purchase Agreement; (iv) such Mortgage Loan is
purchased by the Plurality Subordinate Certificateholder, the Special Servicer
or any assignee thereof pursuant to Section 3.18 or by the Master Servicer, the
Special Servicer or the Plurality Subordinate Certificateholder pursuant to
Section 9.01; (v) in the case of an A-Note Trust Mortgage Loan or the Glendale
Galleria Trust Mortgage Loan, such Mortgage Loan is purchased by the related
B-Noteholder (in the case of an A-Note Trust Mortgage Loan) or by a Glendale
Galleria Subordinate Noteholder (in the case of the Glendale Galleria Trust
Mortgage Loan) pursuant to the related Loan Combination Intercreditor Agreement;
(vi) such Mortgage Loan is purchased by a mezzanine lender pursuant to the
related mezzanine intercreditor agreement; or (vii) such Mortgage Loan is
removed from the Trust by the Sole Certificate Owner in connection with an
exchange of all of the outstanding Certificates owned by the Sole Certificate
Owner for all of the Trust Mortgage Loans and each REO Property remaining in the
Trust Fund pursuant to Section 9.01. With respect to any REO Property (and the
related REO Loan), any of the following events: (i) a Final Recovery
Determination is made with respect to such REO Property; (ii) such REO Property
is purchased or replaced by a Mortgage Loan Seller pursuant to the applicable
Mortgage Loan Purchase Agreement; (iii) such REO Property is purchased by the
Master Servicer, the Special Servicer or the Plurality Subordinate
Certificateholder pursuant to Section 9.01; or (iv) such REO Property is removed
from the Trust Fund by the Sole Certificate Owner in connection with an exchange
of all of the outstanding Certificates owned by the Sole Certificate Owner for
all of the Trust Mortgage Loans and each REO Property remaining in the Trust
Fund pursuant to Section 9.01.
"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds and REO Revenues) received by the Master Servicer or the Special
Servicer in connection with: (i) the taking of all or a part of a Mortgaged
Property or REO Property by exercise of the power of eminent domain or
condemnation, subject, however, to the rights of any tenants and ground lessors,
as the case may be, and the rights of the Mortgagor under the terms of the
related Mortgage; (ii) the liquidation of a Mortgaged Property or other
collateral constituting security for a defaulted Mortgage Loan, through
trustee's sale, foreclosure sale, REO Disposition or otherwise, exclusive of any
portion thereof required to be released to the related Mortgagor in accordance
with applicable law and the terms and conditions of the related Mortgage Note
and Mortgage; (iii) the realization upon any deficiency judgment obtained
against a Mortgagor; (iv) the purchase of a Serviced Trust Defaulted Mortgage
Loan by the Plurality Subordinate Certificateholder, the Special Servicer or any
assignee thereof pursuant to Section 3.18; (v) the repurchase or substitution of
a Trust Mortgage Loan or REO Property by a Mortgage Loan Seller, pursuant to the
applicable Mortgage Loan Purchase Agreement; (vi) the purchase of a Trust
Mortgage Loan or REO Property by the Master Servicer, the Special Servicer, or
the Plurality Subordinate Certificateholder pursuant to Section 9.01; (vii) the
purchase of an A-Note Trust Mortgage Loan by the related B-Noteholder or the
purchase of the Glendale Galleria Trust Mortgage Loan by a Glendale Galleria
Subordinate Noteholder, in each case pursuant to the related Loan Combination
Intercreditor Agreement; (viii) the purchase of a Mortgage Loan by a mezzanine
lender pursuant to the related mezzanine intercreditor agreement; (ix) the
removal of a Mortgage Loan or REO Property from the Trust Fund by the Sole
Certificate Owner in connection with an exchange of all of the outstanding
Certificates owned by the Sole Certificate Owner for all of the Trust Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to Section
9.01.
"Loan Combination": Any of the A/B Loan Combinations or the Glendale
Galleria Loan Combination, as the case may be. The term "Loan Combination" shall
include any successor REO Loans with respect to the applicable Mortgage Loans
comprising such Loan Combination.
"Loan Combination Custodial Account": With respect to any Loan
Combination, the separate account (which may be a sub-account of the Collection
Account) created and maintained by the Master Servicer pursuant to Section
3.04(h) and held on behalf of the Certificateholders and the related Non-Trust
Noteholder. Any such account shall be an Eligible Account.
"Loan Combination Intercreditor Agreement": With respect to each
Loan Combination, each intercreditor agreement (including the Glendale Galleria
Intercreditor Agreement) in effect between (i) the Trust Fund as holder of the
related Trust Mortgage Loan and (ii) the Non-Trust Noteholder(s).
"Loan Combination Mortgaged Property": The Mortgaged Property
securing a Loan Combination.
"Loan Combination REO Account": With respect to each Loan
Combination (other than the Glendale Galleria Loan Combination), a segregated
account or accounts created and maintained by the Special Servicer pursuant to
Section 3.16 on behalf of the Trustee, in trust for the Certificateholders, and
the related Non-Trust Noteholder, which shall be entitled "LNR Partners, Inc.,
as Special Servicer for Xxxxx Fargo Bank, N.A., as Trustee in trust for
registered holders of Xxxxxxx Xxxxx Mortgage Trust 2005-LC1, Commercial Mortgage
Pass-Through Certificates, Series 2005-LC1, and [name of the related Non-Trust
Noteholder(s)], as their interests may appear."
"Loan Combination REO Property": With respect to each Loan
Combination, the related Mortgaged Property if such Mortgaged Property is
acquired on behalf and in the name of the Trust Fund, for the benefit of the
Certificateholders, and the related Non-Trust Noteholder, as their interests may
appear, through foreclosure, acceptance of a deed-in-lieu of foreclosure or
otherwise in accordance with applicable law in connection with the default or
imminent default of such Loan Combination.
"Loan Group": Either Loan Group 1 or Loan Group 2.
"Loan Group 1": Collectively, all of the Trust Mortgage Loans that
are Group 1 Mortgage Loans and any successor Trust REO Loans with respect
thereto.
"Loan Group 1 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available Distribution Amount
attributable to Loan Group 1.
"Loan Group 1 Principal Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Principal Distribution Amount
attributable to the Trust Mortgage Loans and Trust REO Loans belonging to Loan
Group 1, taking into account adjustments in accordance with Section 1.02.
"Loan Group 2": Collectively, all of the Trust Mortgage Loans that
are Group 2 Mortgage Loans and any successor Trust REO Loans with respect
thereto.
"Loan Group 2 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available Distribution Amount
attributable to Loan Group 2.
"Loan Group 2 Principal Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Principal Distribution Amount
attributable to the Trust Mortgage Loans and Trust REO Loans belonging to Loan
Group 2, taking into account adjustments in accordance with Section 1.02.
"Loan-to-Value Ratio": With respect to any Mortgage Loan, as of any
date of determination, a fraction, expressed as a percentage, the numerator of
which is (i) the then current principal amount of such Mortgage Loan, or (ii) in
the case of the Glendale Galleria Trust Mortgage Loan, the then aggregate
current principal amount of the Glendale Galleria Trust Mortgage Loan and the
Glendale Galleria Pari Passu Non-Trust Loan, in each case as adjusted in
accordance with the considerations specified in Section 3.08(a)(i), and the
denominator of which is the Appraised Value of the related Mortgaged Property.
"Master Servicer": GMAC Commercial Mortgage Corporation, its
successor in interest, or any successor master servicer appointed as herein
provided.
"Master Servicing Fee": With respect to each Mortgage Loan and any
successor REO Loan with respect thereto, the fee payable to the Master Servicer
pursuant to Section 3.11(a).
"Master Servicing Fee Rate": With respect to each Trust Mortgage
Loan, the per annum rate equal to the sum of the rates set forth under the
columns "Master Servicing Fee Rate," "Primary Servicing Fee Rate" and
"Sub-Servicer Fee Rate" on the Mortgage Loan Schedule, and with respect to each
Non-Trust Loan, or any successor REO Loan with respect thereto, the per annum
rate at which any related Master Servicing Fee is permitted to be calculated
under the related Loan Combination Intercreditor Agreement. Notwithstanding the
foregoing, for purposes of determining the amount of servicing compensation
actually payable to the Master Servicer in respect of the Glendale Galleria
Trust Mortgage Loan pursuant to Section 3.11(a), only the rate (0.01%) set forth
under the column "Master Servicing Fee Rate" shall be taken into account.
"Merrill Mortgage Loan Purchase Agreement": That certain mortgage
loan purchase agreement, dated as of December 16, 2005, between the Depositor
and MLMLI and relating to the transfer of the Merrill Trust Mortgage Loans to
the Depositor.
"Merrill Trust Mortgage Loans": Each of the Trust Mortgage Loans
transferred and assigned to the Depositor pursuant to the Merrill Mortgage Loan
Purchase Agreement.
"MLMLI": Xxxxxxx Xxxxx Mortgage Lending, Inc., a Delaware
corporation, or its successor in interest.
"MLMT Series 2005-CKI1 Applicable Servicer": The MLMT Series
2005-CKI1 Master Servicer or the MLMT Series 2005-CKI1 Special Servicer, as
applicable.
"MLMT Series 2005-CKI1 Master Servicer": As defined in the
Preliminary Statement. The term "MLMT Series 2005-CKI1 Master Servicer" shall
include any successor master servicer appointed pursuant to the MLMT Series
2005-CKI1 Pooling and Servicing Agreement.
"MLMT Series 2005-CKI1 Pooling and Servicing Agreement": As defined
in the Preliminary Statement.
"MLMT Series 2005-CKI1 Securitization": As defined in the
Preliminary Statement.
"MLMT Series 2005-CKI1 Servicing Fee": With respect to the Glendale
Galleria Trust Mortgage Loan or any successor Trust REO Loan with respect
thereto, the "Master Servicing Fee" payable to the MLMT Series 2005-CKI1 Master
Servicer with respect to such Mortgage Loan or Trust REO Loan, as the case may
be, pursuant to the MLMT Series 2005-CKI1 Pooling and Servicing Agreement.
"MLMT Series 2005-CKI1 Servicing Fee Rate": With respect to the
Glendale Galleria Trust Mortgage Loan or any related Trust REO Loan, the "Master
Servicing Fee Rate" (as defined in the MLMT Series 2005-CKI1 Pooling and
Servicing Agreement) for such Mortgage Loan or REO Loan, as the case may be. The
MLMT Series 2005-CKI1 Servicing Fee Rate includes the rate (0.02%) set forth in
the Mortgage Loan Schedule under the column "Sub-Servicer Fee" with respect to
the Glendale Galleria Trust Mortgage Loan.
"MLMT Series 2005-CKI1 Special Servicer": As defined in the
Preliminary Statement. The term "MLMT Series 2005-CKI1 Special Servicer" shall
include any successor special servicer appointed pursuant to the MLMT Series
2005-CKI1 Pooling and Servicing Agreement.
"MLMT Series 2005-CKI1 Trustee": As defined in the Preliminary
Statement. The term "MLMT Series 2005-CKI1 Trustee" shall include any successor
trustee appointed pursuant to the MLMT Series 2005-CKI1 Pooling and Servicing
Agreement.
"MLPF&S": Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, a
Delaware corporation, or its successor in interest.
"Moody's": Xxxxx'x Investors Service, Inc., or its successor in
interest. If neither such Rating Agency nor any successor remains in existence,
"Moody's" shall be deemed to refer to such other nationally recognized
statistical rating organization or other comparable Person designated by the
Depositor, notice of which designation shall be given to the Trustee, the Master
Servicer, the Special Servicer and the Certificate Administrator, 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, the mortgage, deed of
trust, deed to secure debt or similar instrument that secures the Mortgage Note
and creates a lien on the fee or leasehold interest in the related Mortgaged
Property.
"Mortgage File":
(a) With respect to any Serviced Trust Mortgage Loan and, in the
case of any Serviced Trust Mortgage Loan that is part of a Loan Combination,
also with respect to the related Non-Trust Loan(s), collectively the following
documents (which, in the case of a Loan Combination, except for the Mortgage
Notes referred to in clause (i) of this definition and any modifications thereof
referred to in clause (vi) of this definition, relate to the entire Loan
Combination):
(i) (A) the original executed Mortgage Note for such Serviced Trust
Mortgage Loan, including any power of attorney related to the execution
thereof (or a lost note affidavit and indemnity with a copy of such
Mortgage Note attached thereto), together with any and all intervening
endorsements thereon, endorsed on its face or by allonge attached thereto
(without recourse, representation or warranty, express or implied) to the
order of Xxxxx Fargo Bank, N.A., as trustee for the registered holders of
Xxxxxxx Xxxxx Mortgage Trust 2005-LC1, Commercial Mortgage Pass-Through
Certificates, Series 2005-LC1, or in blank, and (B) in the case of a Loan
Combination, a copy of the executed Mortgage Note for each related
Non-Trust Loan;
(ii) an original or a copy of the Mortgage, together with originals
or copies of any and all intervening assignments thereof, in each case
(unless not yet returned by the applicable recording office) with evidence
of recording indicated thereon or certified by the applicable recording
office;
(iii) an original or a copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage), together with
originals or copies of any and all intervening assignments thereof, in
each case (unless not yet returned by the applicable recording office)
with evidence of recording indicated thereon or certified by the
applicable recording office;
(iv) an original executed assignment, in recordable form (except for
completion of the assignee's name and address, if the assignment is
delivered in blank, and any missing recording information) or a certified
copy of that assignment as sent for recording, of (A) the Mortgage, (B)
any related Assignment of Leases (if such item is a document separate from
the Mortgage) and (C) any other recorded document relating to such
Serviced Trust Mortgage Loan otherwise included in the Mortgage File, in
favor of Xxxxx Fargo Bank, N.A., as trustee for the registered holders of
Xxxxxxx Xxxxx Mortgage Trust 2005-LC1, Commercial Mortgage Pass-Through
Certificates, Series 2005-LC1 (or, in the case of a Loan Combination, in
favor of Xxxxx Fargo Bank, N.A., as trustee for the registered holders of
Xxxxxxx Xxxxx Mortgage Trust 2005-LC1, Commercial Mortgage Pass-Through
Certificates, Series 2005-LC1, and in its capacity as lead lender on
behalf of the holder of the related Non-Trust Loan(s)), or in blank;
(v) an original assignment of all unrecorded documents relating to
the subject Trust Mortgage Loan (to the extent not already assigned
pursuant to clause (iv) above), in favor of Xxxxx Fargo Bank, N.A., as
trustee for the registered holders of Xxxxxxx Xxxxx Mortgage Trust
2005-LC1, Commercial Mortgage Pass-Through Certificates, Series 2005-LC1
(or, in the case of a Loan Combination, in favor of Xxxxx Fargo Bank,
N.A., as trustee for the registered holders of Xxxxxxx Xxxxx Mortgage
Trust 2005-LC1, Commercial Mortgage Pass-Through Certificates, Series
2005-LC1, and in its capacity as lead lender on behalf of the holder of
the related Non-Trust Loan(s)), or in blank;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where the
terms or provisions of the Mortgage or Mortgage Note have been
consolidated or modified or the subject Trust Mortgage Loan has been
assumed;
(vii) the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been issued or
located, an original or a copy of an irrevocable, binding commitment
(which may be a pro forma policy or a marked version of the policy that
has been executed by an authorized representative of the title company or
an agreement to provide the same pursuant to binding escrow instructions
executed by an authorized representative of the title company) to issue
such title insurance policy;
(viii) any filed copies or other evidence of filing of any prior UCC
Financing Statements in favor of the originator of such Serviced Trust
Mortgage Loan or in favor of any assignee prior to the Trustee (but only
to the extent the Mortgage Loan Seller had possession of such UCC
Financing Statements prior to the Closing Date) and, if there is an
effective UCC Financing Statement in favor of the Mortgage Loan Seller on
record with the applicable public office for UCC Financing Statements, a
UCC Financing Statement assignment, in form suitable for filing in favor
of Xxxxx Fargo Bank, N.A., as trustee for the registered holders of
Xxxxxxx Xxxxx Mortgage Trust 2005-LC1, Commercial Mortgage Pass-Through
Certificates, Series 2005-LC1, as assignee (or, in the case of a Loan
Combination, in favor of Xxxxx Fargo Bank, N.A., as trustee for the
registered holders of Xxxxxxx Xxxxx Mortgage Trust 2005-LC1, Commercial
Mortgage Pass-Through Certificates, Series 2005-LC1, and in its capacity
as lead lender on behalf of the holder of the related Non-Trust Loan(s)),
or in blank;
(ix) an original or a copy of any Ground Lease, guaranty or ground
lessor estoppel;
(x) any intercreditor agreement relating to permitted debt of the
Mortgagor (including, in the case of a Trust Mortgage Loan that is part of
a Loan Combination, any related Loan Combination Intercreditor Agreement)
and any intercreditor agreement relating to mezzanine debt related to the
Mortgagor;
(xi) an original or a copy of any loan agreement, any escrow or
reserve agreement, any security agreement, any management agreement, any
agreed upon procedures letter, any lockbox or cash management agreements,
any environmental reports or any letter of credit (which letter of credit
shall not be delivered in original form to the Trustee but rather to the
Master Servicer), in each case relating to such Serviced Trust Mortgage
Loan; and
(xii) with respect to a Serviced Trust Mortgage Loan secured by a
hospitality property, a signed copy of any franchise agreement and/or
franchisor comfort letter;
(b) with respect to the Glendale Galleria Trust Mortgage Loan, the following
documents collectively:
(i) the original executed Mortgage Note for such Trust
Mortgage Loan including any power of attorney related to the
execution thereof (or a lost note affidavit and indemnity with a
copy of such Mortgage Note attached thereto), together with any and
all intervening endorsements thereon, endorsed on its face or by
allonge attached thereto (without recourse, representation or
warranty, express or implied) to the order of Xxxxx Fargo Bank,
N.A., as trustee for the registered holders of Xxxxxxx Xxxxx
Mortgage Trust 2005-LC1, Commercial Mortgage Pass-Through
Certificates, Series 2005-LC1, or in blank;
(ii) an executed copy of the Glendale Galleria Intercreditor
Agreement; and
(iii) an executed copy of the MLMT Series 2005-CKI1 Pooling
and Servicing Agreement;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or by a Custodian on its behalf, such term
shall not be deemed to include such documents required to be included therein
unless they are actually so received, and with respect to any receipt or
certification by the Trustee or the Custodian for documents described in clause
(a)(vi) of this definition, shall be deemed to include only such documents to
the extent the Trustee or Custodian has actual knowledge of their existence.
"Mortgage Loan": Any Trust Mortgage Loan or any Non-Trust Loan. As
used herein, the term "Mortgage Loan" includes the related Mortgage Note,
Mortgage and other security documents contained in the related Mortgage File or
otherwise held on behalf of the Trust and/or any Non-Trust Noteholder, as
applicable.
"Mortgage Loan Purchase Agreement": Any of the Countrywide
Mortgage Loan Purchase Agreement, the LaSalle Mortgage Loan Purchase
Agreement and the Merrill Mortgage Loan Purchase Agreement.
"Mortgage Loan Schedule": The list of Trust Mortgage Loans
transferred on the Closing Date to the Trustee as part of REMIC I, respectively,
attached hereto as Exhibit B and in a computer readable format. Such list shall
set forth the following information with respect to each Trust Mortgage Loan:
(i) the loan identification number (as specified in Annex
A-1 to the Prospectus);
(ii) the street address (including city, county, state and
zip code) and name of the related Mortgaged Property;
(iii) the Cut-off Date Balance;
(iv) the amount of the Periodic Payment due on the first
Due Date following the Closing Date;
(v) the Net Mortgage Rate as of the Cut-off Date and the
original Mortgage Rate;
(vi) the (A) original term to stated maturity, (B)
remaining term to stated maturity and (C) Stated
Maturity Date;
(vii) the original and remaining amortization term;
(viii) whether the Trust Mortgage Loan is secured by a
Ground Lease;
(ix) the Master Servicing Fee Rate;
(x) whether such Trust Mortgage Loan is an ARD Loan and
if so the Anticipated Repayment Date and Additional
Interest Rate for such ARD Loan;
(xi) the related Mortgage Loan Seller and, if different,
the related originator;
(xii) whether such Trust Mortgage Loan is insured by an
environmental policy;
(xiii) whether such Trust Mortgage Loan is cross-defaulted
or cross-collateralized with any other Trust Mortgage
Loan;
(xiv) whether such Trust Mortgage Loan is a Defeasance
Loan;
(xv) whether the Trust Mortgage Loan is secured by a
letter of credit;
(xvi) whether payments on such Trust Mortgage Loan are made
to a lock-box;
(xvii) the amount of any Reserve Funds escrowed in respect
of each Trust Mortgage Loan;
(xviii) the number of days of any grace period permitted in
respect of any Periodic Payment due under such Trust
Mortgage Loan;
(xix) the property type of the related Mortgaged Property
as reported in the rent roll;
(xx) the original principal balance of such Trust Mortgage
Loan;
(xxi) the interest accrual basis of such Trust Mortgage
Loan;
(xxii) the primary servicing fee rate, if any, for such
Trust Mortgage Loan;
(xxiii) the applicable Loan Group to which the Trust Mortgage
Loan belongs; and
(xxiv) whether such Trust Mortgage Loan has an operations
and maintenance plan in place.
"Mortgage Loan Seller": MLMLI, LaSalle Bank or Countrywide.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan, together with any rider,
addendum or amendment thereto, or any renewal, substitution or replacement of
such note.
"Mortgage Pool": Collectively, all of the Trust Mortgage Loans and
any successor Trust REO Loans. The Non-Trust Loans shall not constitute part of
the Mortgage Pool.
"Mortgage Rate": With respect to: (i) any Mortgage Loan on or prior
to its Stated Maturity Date, the fixed annualized rate, not including any
Additional Interest Rate, at which interest is scheduled (in the absence of a
default) to accrue on such Mortgage Loan from time to time in accordance with
the related Mortgage Note and applicable law; (ii) any Mortgage Loan after its
Stated Maturity Date, the annualized rate described in clause (i) above
determined without regard to the passage of such Stated Maturity Date, but
giving effect to any modification thereof as contemplated by Section 3.20 or, in
the case of the Glendale Galleria Trust Mortgage Loan, any modification thereof
pursuant to the MLMT Series 2005-CKI1 Pooling and Servicing Agreement; and (iii)
any REO Loan, the annualized rate described in clause (i) or (ii), as
applicable, above determined as if the predecessor Mortgage Loan had remained
outstanding.
"Mortgaged Property": The property subject to the lien of a
Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note, including
without limitation, any Person that has not signed the related Mortgage Note but
owns an interest in the related Mortgaged Property, which interest has been
encumbered to secure such Mortgage Loan, and any Person that has acquired the
related Mortgaged Property and assumed the obligations of the original obligor
under the Mortgage Note, but excluding guarantors that do not own the related
Mortgaged Property.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the Trust Mortgage Loans during the related Collection
Period, exceeds (b) the aggregate amount deposited by the Master Servicer in the
Collection Account for such Distribution Date pursuant to Section 3.19(a) in
connection with such Prepayment Interest Shortfalls on the Trust Mortgage Loans.
"Net Investment Earnings": With respect to each of the Collection
Account, the Interest Reserve Account, any Servicing Account, any Reserve
Account, any REO Account, the Distribution Account, any Loan Combination
Custodial Account, the Additional Interest Account, the Floating Rate Account
and the Gain-on-Sale Reserve Account, for any Investment Period, the amount, if
any, by which the aggregate of all interest and other income realized during
such Investment Period on funds held in such account, exceeds the aggregate of
all losses, if any, incurred during such Investment Period in connection with
the investment of such funds in accordance with Section 3.06 (other than losses
of what would have otherwise constituted interest or other income earned on such
funds).
"Net Investment Loss": With respect to each of the Collection
Account, any Servicing Account, any Reserve Account, any REO Account, the
Distribution Account, any Loan Combination Custodial Account, the Interest
Reserve Account, the Additional Interest Account, the Floating Rate Account and
the Gain-on-Sale Reserve Account, for any Investment Period, the amount by which
the aggregate of all losses, if any, incurred during such Investment Period in
connection with the investment of funds held in such account in accordance with
Section 3.06 (other than losses of what would have otherwise constituted
interest or other income earned on such funds), exceeds the aggregate of all
interest and other income realized during such Investment Period on such funds.
"Net Mortgage Pass-Through Rate":
(A) With respect to any Trust Mortgage Loan (or any successor Trust
REO Loan with respect thereto) that accrues (or is deemed to accrue)
interest on a 30/360 Basis, for any Distribution Date, an annual rate
equal to the Net Mortgage Rate for such Trust Mortgage Loan as of the
Closing Date (without regard to any modification, waiver or amendment of
the terms of such Trust Mortgage Loan subsequent to the Closing Date); and
(B) With respect to any Trust Mortgage Loan (or any successor Trust
REO Loan with respect thereto) that accrues interest on an Actual/360
Basis, for any Distribution Date, an annual rate equal to twelve times a
fraction, expressed as a percentage:
(1) the numerator of which fraction is, subject to
adjustment as described below in this definition, an
amount of interest equal to the product of (a) the
number of days in the Interest Accrual Period for such
Distribution Date, multiplied by (b) the Stated
Principal Balance of such Trust Mortgage Loan (or such
Trust REO Loan) immediately preceding such Distribution
Date, multiplied by (c) 1/360, multiplied by (d) the Net
Mortgage Rate for such Trust Mortgage Loan as of the
Closing Date (without regard to any modification, waiver
or amendment of the terms of such Trust Mortgage Loan
subsequent to the Closing Date); and
(2) the denominator of which fraction is the Stated
Principal Balance of such Trust Mortgage Loan (or such
Trust REO Loan) immediately preceding that Distribution
Date.
Notwithstanding the foregoing, if the subject Distribution Date
occurs during January, except during a leap year, or February of any year
subsequent to 2005, then the amount of interest referred to in the fractional
numerator described in clause (B)(1) above will be decreased to reflect any
Interest Reserve Amounts with respect to the subject Trust Mortgage Loan (or
Trust REO Loan) transferred from the Distribution Account to the Interest
Reserve Account in such calendar month. Furthermore, if the subject Distribution
Date occurs during March of any year subsequent to 2005, then the amount of
interest referred to in the fractional numerator described in clause (B)(1)
above will be increased to reflect any Interest Reserve Amounts with respect to
the subject Trust Mortgage Loan (or Trust REO Loan) transferred from the
Interest Reserve Account to the Distribution Account for distribution on such
Distribution Date.
"Net Mortgage Rate": With respect to any Trust Mortgage Loan or any
Trust REO Loan, as of any date of determination, a rate per annum equal to the
related Mortgage Rate minus the sum of the Trustee Fee Rate, the applicable
Master Servicing Fee Rate and, in the case of the Glendale Galleria Trust
Mortgage Loan or any successor Trust REO Loan with respect thereto, the MLMT
Series 2005-CKI1 Servicing Fee Rate; and with respect to any Non-Trust Loan or
any successor REO Loan with respect thereto, the related Mortgage Rate minus the
applicable Master Servicing Fee Rate.
"Net Operating Income" or "NOI": With respect to any Mortgaged
Property, for any twelve-month period, the total operating revenues derived from
such Mortgaged Property during such period, minus the total operating expenses
incurred in respect of such Mortgaged Property during such period, other than
(i) non-cash items such as depreciation, (ii) amortization, (iii) actual capital
expenditures and (iv) debt service on the related Mortgage Loan.
"New Lease": Any lease of REO Property entered into at the direction
of the Special Servicer, including any lease renewed, modified or extended on
behalf of the Trustee for the benefit of the Certificateholders and, in the case
of a Loan Combination, the related Non-Trust Noteholder(s).
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance (including
any Workout-Delayed Reimbursement Amount that subsequently becomes a
Nonrecoverable P&I Advance) or Nonrecoverable Servicing Advance (including any
Workout-Delayed Reimbursement Amount that subsequently becomes a Nonrecoverable
Servicing Advance).
"Nonrecoverable P&I Advance": Any P&I Advance previously made or
proposed to be made, including any previously made P&I Advance that constitutes
a Workout-Delayed Reimbursement Amount, in respect of any Trust Mortgage Loan or
Trust REO Loan by the Master Servicer or the Trustee, as the case may be, that,
as determined by the Master Servicer, the Special Servicer or the Trustee, as
applicable, in accordance with the Servicing Standard (in the case of the Master
Servicer and the Special Servicer) or its good faith judgment (in the case of
the Trustee) with respect to such P&I Advance (together with any accrued and
unpaid interest thereon), will not be ultimately recoverable from Late
Collections, REO Revenues, Insurance Proceeds or Liquidation Proceeds, or any
other recovery on or with respect to such Trust Mortgage Loan or Trust REO Loan
(or, in the case of a Trust Mortgage Loan that is a part of a Loan Combination,
on or with respect to the related Loan Combination); provided, however, the
Special Servicer may, at its option, make a determination (which shall be
binding upon the Master Servicer and the Trustee) in accordance with the
Servicing Standard, that any P&I Advance previously made or proposed to be made,
or any Workout-Delayed Reimbursement Amount previously made, by the Master
Servicer or the Trustee is a Nonrecoverable P&I Advance and shall deliver notice
of such determination to the Master Servicer, the Trustee and the Certificate
Administrator; provided that the Special Servicer shall have no right to
determine that any such Advance determined by the Master Servicer or Trustee to
be a Nonrecoverable Advance is recoverable. In making a recoverability
determination, the applicable Person will be entitled to consider (among other
things) the obligations of the Mortgagor under the terms of the related Mortgage
Loan as it may have been modified, to consider (among other things) the related
Mortgaged Properties in their "as is" or then current conditions and
occupancies, as modified by such Person's assumptions (consistent with the
Servicing Standard) regarding the possibility and effects of future adverse
change with respect to such Mortgaged Properties, to estimate and consider
(among other things) future expenses, to estimate and consider (consistent with
the Servicing Standard) (among other things) the timing of recoveries, and to
consider the existence and amount of any outstanding Nonrecoverable Advances the
reimbursement of which is being deferred pursuant to Section 4.03(f), any
outstanding Workout Delayed Reimbursement Amounts and any Unliquidated Advances.
In addition, any such Person may update or change its recoverability
determinations at any time (but not reverse another party's determination that a
P&I Advance is a Nonrecoverable Advance) and, consistent with the Servicing
Standard, may obtain from the Special Servicer any reasonably required analysis,
Appraisals or market value estimates or other information in the Special
Servicer's possession for such purposes. Absent bad faith, the Master
Servicer's, the Special Servicer's or the Trustee's determination as to the
recoverability of any P&I Advance shall be conclusive and binding on the
Certificateholders. The Trustee shall be entitled to conclusively rely on any
determination made by the Master Servicer that an Advance is a Nonrecoverable
Advance, and the Master Servicer and the Trustee shall conclusively rely on any
determination made by the Special Servicer that an Advance is a Nonrecoverable
Advance and shall be required to act in accordance with such determination upon
receipt of written notice thereof.
"Nonrecoverable Servicing Advance": Any Servicing Advance previously
made or proposed to be made, including any previously made Servicing Advance
that constitutes a Workout-Delayed Reimbursement Amount, in respect of a
Serviced Mortgage Loan or Serviced REO Loan by the Master Servicer, the Special
Servicer or the Trustee, as the case may be, that, as determined by the Master
Servicer, the Special Servicer or the Trustee, as applicable, in accordance with
the Servicing Standard (in the case of the Master Servicer and the Special
Servicer) or its good faith judgment (in the case of the Trustee) with respect
to such Servicing Advance (together with any accrued and unpaid interest
thereon), will not be ultimately recoverable from Late Collections, REO
Revenues, Insurance Proceeds, Liquidation Proceeds, or any other recovery on or
in respect of such Mortgage Loan or the related REO Property; provided, however,
the Special Servicer may, at its option, make a determination (which shall be
binding upon the Master Servicer and the Trustee) in accordance with the
Servicing Standard, that any Servicing Advance previously made or proposed to be
made, or any Workout-Delayed Reimbursement Amount previously made, by the Master
Servicer or the Trustee is a Nonrecoverable Servicing Advance and shall deliver
notice of such determination to the Master Servicer, the Certificate
Administrator and the Trustee; provided, further, that the Special Servicer
shall have no right to determine that any such Advance determined by the Master
Servicer or Trustee to be a Nonrecoverable Advance is recoverable. In making
such recoverability determination, such Person will be entitled to consider
(among other things) only the obligations of the Mortgagor under the terms of
the related Mortgage Loan as it may have been modified, to consider (among other
things) the related Mortgaged Properties in their "as is" or then current
conditions and occupancies, as modified by such party's assumptions (consistent
with the Servicing Standard) regarding the possibility and effects of future
adverse change with respect to such Mortgaged Properties, to estimate and
consider (among other things) future expenses and to estimate and consider
(consistent with the Servicing Standard) (among other things) the timing of
recoveries, and to consider the existence and amount of any outstanding
Nonrecoverable Advances the reimbursement of which is being deferred pursuant to
Section 4.03(f), any outstanding Workout Delayed Reimbursement Amounts and any
Unliquidated Advances. In addition, any such Person may update or change its
recoverability determinations at any time (but not reverse another party's
determination that a P&I Advance is a Nonrecoverable Advance) and, consistent
with the Servicing Standard, may obtain from the Special Servicer any reasonably
required analysis, Appraisals or market value estimates or other information in
the Special Servicer's possession for such purposes. Absent bad faith, the
Master Servicer's, the Special Servicer's or the Trustee's determination as to
the recoverability of any Servicing Advance shall be conclusive and binding on
the Certificateholders. The Trustee shall be entitled to conclusively rely on
any determination made by the Master Servicer that an Advance is a
Nonrecoverable Advance, and the Master Servicer and the Trustee shall
conclusively rely on any determination made by the Special Servicer that an
Advance is a Nonrecoverable Advance and shall be required to act in accordance
with such determination upon receipt of written notice thereof.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class X, Class E, Class F, Class G, Class H, Class J, Class
K, Class L, Class M, Class N, Class P, Class Q, Class Z, Class R-I or Class R-II
Certificate.
"Non-Trust Loan" Any B-Note Non-Trust Loan, a Glendale Galleria
Subordinate Non-Trust Loan or the Glendale Galleria Pari Passu Non-Trust Loan,
as the case may be.
"Non-Trust Noteholder": The holder of a Non-Trust Loan.
"Non-United States Tax Person": Any Person other than a United
States Tax Person.
"Officer's Certificate": A certificate signed by a Servicing Officer
of the Master Servicer or the Special Servicer, as the case may be, or by a
Responsible Officer of the Trustee or the Certificate Administrator, as the case
may be.
"Opinion of Counsel": A written opinion of counsel (which counsel
may be a salaried counsel for the Depositor, the Master Servicer or the Special
Servicer) acceptable to and delivered to the Trustee and the Certificate
Administrator or the Master Servicer, as the case may be, except that any
opinion of counsel relating to (a) the qualification of REMIC I or REMIC II as a
REMIC; (b) the qualification of either of Grantor Trust Z or Grantor Trust A-3FL
or Grantor Trust A-4FC as a grantor trust; (c) compliance with REMIC Provisions;
or (d) the resignation of the Master Servicer or Special Servicer pursuant to
Section 6.04 must be an opinion of counsel who is in fact Independent of the
Master Servicer, the Special Servicer or the Depositor, as applicable.
"Option Holder": As defined in Section 3.18(c).
"Option Price": As defined in Section 3.18(c).
"Original Class Principal Balance": With respect to any Class of
Sequential Pay Certificates, the Class A-3FL REMIC II Regular Interest or the
Class A-4FC REMIC II Regular Interest, the initial Class Principal Balance
thereof as of the Closing Date, in each case as specified in the Preliminary
Statement. The Class A-3FL Certificates and the Class A-3FL REMIC II Regular
Interest will have the same Original Class Principal Balance, and the Class
A-4FC Certificates and the Class A-4FC REMIC II Regular Interest will have the
same Original Class Principal Balance.
"Original Notional Amount": The Original Class X Notional Amount.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"Pass-Through Rate": With respect to:
(i) the Class A-1 Certificates for any Distribution Date,
5.0170% per annum;
(ii) the Class A-2 Certificates for any Distribution Date,
a per annum rate equal to the lesser of (a) 5.2020%
and (b) the Weighted Average Net Mortgage
Pass-Through Rate for such Distribution Date;
(iii) the Class A-3 Certificates for any Distribution Date,
a per annum rate equal to the lesser of (a) 5.2890%
and (b) the Weighted Average Net Mortgage
Pass-Through Rate for such Distribution Date;
(iv) the Class A-3FL REMIC II Regular Interest, a per
annum rate equal to the lesser of (a) 5.2890% and (b)
the Weighted Average Net Mortgage Pass-Through Rate
for such Distribution Date;
(v) with respect to the Class A-3FL Certificates, (A) for
any Distribution Date with respect to which a Class
A-3FL Distribution Conversion does not exist, the per
annum rate, expressed as a percentage, equal to the
applicable value of LIBOR specified in or calculated
in accordance with Section 1.03, plus 0.23000% per
annum, and (B) for any Distribution Date with respect
to which a Class A-3FL Distribution Conversion does
exist, the Pass-Through Rate for the Class A-3FL
REMIC II Regular Interest for that Distribution Date;
(vi) the Class A-1A Certificates for any Distribution
Date, a per annum rate equal to the lesser of (a)
5.2830% and (b) the Weighted Average Net Mortgage
Pass-Through Rate for such Distribution Date;
(vii) the Class A-SB Certificates for any Distribution
Date, a per annum rate equal to the lesser of (a)
5.2820% and (b) the Weighted Average Net Mortgage
Pass-Through Rate for such Distribution Date;
(viii) the Class A-4 Certificates for any Distribution Date,
a per annum rate equal to the lesser of (a) 5.2910%
and (b) the Weighted Average Net Mortgage
Pass-Through Rate for such Distribution Date;
(ix) the Class A-4FC REMIC II Regular Interest, a per
annum rate equal to the lesser of (a) 5.2910% and (b)
the Weighted Average Net Mortgage Pass-Through Rate
for such Distribution Date;
(x) with respect to the Class A-4FC Certificates, (A) for
any Distribution Date with respect to which a Class
A-4FC Distribution Conversion does not exist, the per
annum rate, expressed as a percentage, equal to the
applicable value of the CPI Index Rate specified in
or calculated in accordance with Section 1.04, plus
2.1400% per annum, and (B) for any Distribution Date
with respect to which a Class A-4FC Distribution
Conversion does exist, the Pass-Through Rate for the
Class A-4FC REMIC II Regular Interest for that
Distribution Date;
(xi) the Class AM Certificates for any Distribution Date,
a per annum rate equal to the Weighted Average Net
Mortgage Pass-Through Rate for such Distribution Date
minus 0.113%;
(xii) the Class AJ Certificates for any Distribution Date,
a per annum rate equal to the Weighted Average Net
Mortgage Pass-Through Rate for such Distribution Date
minus 0.054%;
(xiii) the Class B Certificates for any Distribution Date, a
per annum rate equal to the Weighted Average Net
Mortgage Pass-Through Rate for such Distribution
Date;
(xiv) the Class C Certificates for any Distribution Date, a
per annum rate equal to the Weighted Average Net
Mortgage Pass-Through Rate for such Distribution
Date;
(xv) the Class D Certificates for any Distribution Date, a
per annum rate equal to the Weighted Average Net
Mortgage Pass-Through Rate for such Distribution
Date;
(xvi) the Class E Certificates for any Distribution Date, a
per annum rate equal to the Weighted Average Net
Mortgage Pass-Through Rate for such Distribution
Date;
(xvii) the Class F Certificates for any Distribution Date, a
per annum rate equal to the Weighted Average Net
Mortgage Pass-Through Rate for such Distribution
Date;
(xviii) the Class G Certificates for any Distribution Date, a
per annum rate equal to the Weighted Average Net
Mortgage Pass-Through Rate for such Distribution
Date;
(xix) the Class H Certificates for any Distribution Date, a
per annum rate equal to the Weighted Average Net
Mortgage Pass-Through Rate for such Distribution
Date;
(xx) the Class J Certificates for any Distribution Date, a
per annum rate equal to the lesser of (a) 4.9270% and
(b) the Weighted Average Net Mortgage Pass-Through
Rate for such Distribution Date;
(xxii) the Class K Certificates for any Distribution Date, a
per annum rate equal to the lesser of (a) 4.9270% and
(b) the Weighted Average Net Mortgage Pass-Through
Rate for such Distribution Date;
(xxiii) the Class L Certificates for any Distribution Date, a
per annum rate equal to the lesser of (a) 4.9270% and
(b) the Weighted Average Net Mortgage Pass-Through
Rate for such Distribution Date;
(xxiv) the Class M Certificates for any Distribution Date, a
per annum rate equal to the lesser of (a) 4.9270% and
(b) the Weighted Average Net Mortgage Pass-Through
Rate for such Distribution Date;
(xxv) the Class N Certificates for any Distribution Date, a
per annum rate equal to the lesser of (a) 4.9270% and
(b) the Weighted Average Net Mortgage Pass-Through
Rate for such Distribution Date;
(xxvi) the Class P Certificates for any Distribution Date, a
per annum rate equal to the lesser of (a) 4.9270% and
(b) the Weighted Average Net Mortgage Pass-Through
Rate for such Distribution Date;
(xxvii) the Class Q Certificates for any Distribution Date, a
per annum rate equal to the lesser of (a) 4.9270% and
(b) the Weighted Average Net Mortgage Pass-Through
Rate for such Distribution Date; and
(xxviii) the Class X Certificates, for any Distribution Date,
a rate equal to the weighted average of the Class X
Strip Rates for the Class X Components for such
Distribution Date (weighted on the basis of the
respective Component Notional Amounts of such Class X
Components outstanding immediately prior to such
Distribution Date).
"P&I Advance": As to any Trust Mortgage Loan or Trust REO Loan, any
advance made by the Master Servicer or the Trustee pursuant to Section 4.03.
"P&I Advance Date": The Business Day immediately preceding each
Distribution Date.
"Penalty Interest": With respect to any Mortgage Loan (or any
successor REO Loan with respect thereto), any amounts collected thereon, other
than late payment charges, Additional Interest, Prepayment Premiums or Yield
Maintenance Charges, that represent penalty interest (arising out of a default)
in excess of interest on such Mortgage Loan (or such successor REO Loan) accrued
at the related Mortgage Rate.
"Percentage Interest": With respect to any Regular Certificate,
Class A-3FL Certificates or Class A-4FC Certificate, the portion of the relevant
Class evidenced by such Certificate, expressed as a percentage, the numerator of
which is the Certificate Principal Balance or Certificate Notional Amount, as
the case may be, of such Certificate as of the Closing Date, as specified on the
face thereof, and the denominator of which is the Original Class Principal
Balance or Original Notional Amount, as the case may be, of the relevant Class.
With respect to a Residual Certificate or Class Z Certificate, the percentage
interest in distributions to be made with respect to the relevant Class, as
stated on the face of such Certificate.
"Performance Certification": As defined in Section 8.17(b).
"Performing Party": As defined in Section 8.17(b).
"Periodic Payment": With respect to any Mortgage Loan as of any Due
Date, the scheduled payment of principal and/or interest on such Mortgage Loan
(exclusive of Additional Interest), including any Balloon Payment, that is
actually payable by the related Mortgagor from time to time under the terms of
the related Mortgage Note (as such terms may be changed or modified in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or by reason of a modification, waiver or amendment granted or agreed
to by the Special Servicer pursuant to Section 3.20) or, in the case of the
Glendale Galleria Trust Mortgage Loan, by the MLMT Series 2005-CKI1 Applicable
Servicer pursuant to the MLMT Series 2005-CKI1 Pooling and Servicing Agreement.
"Permitted Investments": Any one or more of the following
obligations or securities (including obligations or securities of the Trustee,
the Certificate Administrator or one of their respective Affiliates if otherwise
qualifying hereunder):
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any
agency or instrumentality thereof (having original maturities of not more
than 365 days), provided such obligations are backed by the full faith and
credit of the United States. Such obligations must be limited to those
instruments that have a predetermined fixed dollar amount of principal due
at maturity that cannot vary or change. Interest may either be fixed or
variable. If such interest is variable, interest must be tied to a single
interest rate index plus a single fixed spread (if any), and move
proportionately with that index. In addition, such obligations may not
have a rating from S&P with an "r" highlighter;
(ii) repurchase agreements or obligations with respect to any
security described in clause (i) above (having original maturities of not
more than 365 days), provided that the short-term deposit or debt
obligations, of the party agreeing to repurchase such obligations are
rated in the highest rating categories of each of S&P and Xxxxx'x or such
lower rating as will not result in an Adverse Rating Event, as evidenced
in writing by the Rating Agencies. In addition, it may not have a rating
from S&P with an "r" highlighter and its terms must have a predetermined
fixed dollar amount of principal due at maturity that cannot vary or
change. Interest may either be fixed or variable. If such interest is
variable, interest must be tied to a single interest rate index plus a
single fixed spread (if any), and move proportionately with that index;
(iii) federal funds, unsecured uncertified certificates of deposit,
time deposits, demand deposits and bankers' acceptances of any bank or
trust company organized under the laws of the United States or any state
thereof (having original maturities of not more than 365 days), the short
term obligations of which are rated in the highest rating categories of
each of S&P and Xxxxx'x or such lower rating as will not result in an
Adverse Rating Event, as evidenced in writing by the Rating Agencies. In
addition, it may not have a rating from S&P with an "r" highlighter and
its terms should have a predetermined fixed dollar amount of principal due
at maturity that cannot vary or change. Interest may either be fixed or
variable. If such interest is variable, interest must be tied to a single
interest rate index plus a single fixed spread (if any), and move
proportionately with that index;
(iv) commercial paper (including both non-interest bearing discount
obligations and interest-bearing obligations and having original
maturities of not more than 365 days) of any corporation or other entity
organized under the laws of the United States or any state thereof which
is rated in the highest rating category of each of S&P and Xxxxx'x or such
lower rating as will not result in an Adverse Rating Event, as evidenced
in writing by the Rating Agencies. The commercial paper by its terms must
have a predetermined fixed dollar amount of principal due at maturity that
cannot vary or change. In addition, it may not have a rating from S&P with
an "r" highlighter. Interest may either be fixed or variable. If such
interest is variable, interest must be tied to a single interest rate
index plus a single fixed spread (if any), and move proportionately with
that index;
(v) money market funds which are rated in the highest applicable
rating category of each of S&P and Xxxxx'x (or such lower rating as will
not result in an Adverse Rating Event, as evidenced in writing by the
Rating Agencies). In addition, it may not have a rating from S&P with an
"r" highlighter and its terms must have a predetermined fixed dollar
amount of principal due at maturity that cannot vary or change; and
(vi) any other obligation or security acceptable to each Rating
Agency, evidence of which acceptability shall be provided in writing by
each Rating Agency to the Master Servicer, the Special Servicer, the
Trustee and the Certificate Administrator;
provided that (1) no investment described hereunder shall evidence either the
right to receive (x) only interest with respect to such investment or (y) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations; and (2) no investment described hereunder may be
purchased at a price greater than par if such investment may be prepaid or
called at a price less than its purchase price prior to stated maturity.
"Permitted Transferee": Any Transferee that is not (i) a
Disqualified Organization, (ii) any Person as to whom the transfer of any
Residual Certificate may cause either REMIC I or REMIC II to fail to qualify as
a REMIC, (iii) a Disqualified Non-United States Tax Person, (iv) a Disqualified
Partnership or (v) a foreign permanent establishment or fixed base (within the
meaning of any applicable income tax treaty between the United States and any
foreign jurisdiction) of a United States Tax Person.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan": As defined in Section 5.02(c).
"Plurality Residual Certificateholder": As to any taxable year of
REMIC I or REMIC II, the Holder of Certificates holding the largest Percentage
Interest of the related Class of Residual Certificates.
"Plurality Subordinate Certificateholder": As of any date of
determination, any single Holder of Certificates of the Controlling Class (or,
if the Controlling Class consists of Book-Entry Certificates, any single
Certificate Owner) (other than any Holder (or Certificate Owner, as the case may
be) which is an Affiliate of the Depositor or a Mortgage Loan Seller) with the
largest percentage of Voting Rights allocated to such Class. With respect to
determining the Plurality Subordinate Certificateholder, the Class A Senior
Certificates collectively shall be deemed to be a single Class of Certificates,
with such Voting Rights allocated among the Holders of Certificates (or
Certificate Owners) of such Classes of Class A Senior Certificates in proportion
to the respective Certificate Principal Balances of such Certificates as of such
date of determination.
"Pool REO Account": A segregated account or accounts created and
maintained by the Special Servicer pursuant to Section 3.16 on behalf of the
Trustee in trust for the Certificateholders, which shall be entitled "LNR
Partners, Inc., as Special Servicer, for Xxxxx Fargo Bank, N.A., as Trustee in
trust for the registered holders of Xxxxxxx Xxxxx Mortgage Trust 2005-LC1,
Commercial Mortgage Pass-Through Certificates, Series 2005-LC1."
"Preliminary Prospectus Supplement": The preliminary prospectus
supplement dated December 6, 2005 of the Depositor relating to the registration
of the Registered Certificates under the Securities Act.
"Prepayment Assumption": For purposes of determining the accrual of
original issue discount, market discount and premium, if any, on the
Certificates for federal income tax purposes, (i) each Trust ARD Loan is repaid
on its Anticipated Repayment Date, (ii) no Trust Mortgage Loan will otherwise be
paid prior to maturity and (iii) there will be no extension of maturity for any
Trust Mortgage Loan.
"Prepayment Interest Excess": With respect to (a) any Serviced Trust
Mortgage Loan that was subject to a voluntary Principal Prepayment in full or in
part during any Collection Period, which Principal Prepayment was applied to
such Mortgage Loan following such Mortgage Loan's Due Date in such Collection
Period, the amount of interest (net of the related Master Servicing Fee and, if
applicable, any Additional Interest and Penalty Interest) accrued on the amount
of such Principal Prepayment during the period from and after such Due Date and
to but not including the date such Principal Prepayment was applied to such
Mortgage Loan, to the extent collected (without regard to any related Prepayment
Premium or Yield Maintenance Charge actually collected); and (b) the Glendale
Galleria Trust Mortgage Loan, if it was subject to a voluntary Principal
Prepayment in full or in part during any Collection Period, which Principal
Prepayment was applied to such Mortgage Loan following such Mortgage Loan's Due
Date in such Collection Period, the amount of interest (net of the related
Master Servicing Fee, the MLMT Series 2005-CKI1 Servicing Fee and, if
applicable, any Additional Interest and Penalty Interest) accrued on the amount
of such Principal Prepayment during the period from and after such Due Date to
but not including the date such Principal Prepayment was applied to such
Mortgage Loan, to the extent collected by, and to the extent received from, the
MLMT Series 2005-CKI1 Master Servicer (without regard to any related Prepayment
Premium or Yield Maintenance Charge actually collected).
"Prepayment Interest Shortfall": With respect to (a) any Serviced
Trust Mortgage Loan that was subject to a voluntary Principal Prepayment in full
or in part during any Collection Period, which Principal Prepayment was applied
to such Mortgage Loan prior to such Mortgage Loan's Due Date in such Collection
Period, the amount of interest, to the extent not collected from the related
Mortgagor (without regard to any Prepayment Premium or Yield Maintenance Charge
actually collected), that would have accrued (at a rate per annum equal to the
sum of (x) the related Net Mortgage Rate for such Mortgage Loan and (y) the
Trustee Fee Rate) on the amount of such Principal Prepayment during the period
commencing on the date as of which such Principal Prepayment was applied to such
Mortgage Loan and ending on the day immediately preceding such Due Date,
inclusive (net of any portion of that interest that would have constituted
Penalty Interest and/or Additional Interest, if applicable); and (b) the
Glendale Galleria Trust Mortgage Loan, if it was subject to a voluntary
Principal Prepayment in full or in part during any Collection Period, which
Principal Prepayment was applied to such Mortgage Loan prior to such Mortgage
Loan's Due Date in such Collection Period, the amount of interest, to the extent
not collected from the related Mortgagor by, and received from, the MLMT Series
2005-CKI1 Master Servicer (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 the day immediately preceding
such Due Date, inclusive (net of any portion of that interest that would have
constituted Penalty Interest and/or Additional Interest, if applicable).
"Prepayment Premium": Any premium, penalty or fee (other than a
Yield Maintenance Charge) paid or payable, as the context requires, by a
Mortgagor in connection with a Principal Prepayment.
"Primary Collateral": The Mortgaged Property directly securing a
Crossed Loan and excluding any property as to which the related lien may only be
foreclosed upon by exercise of cross-collateralization provisions.
"Prime Rate": The "prime rate" published in the "Money Rates"
section of The Wall Street Journal, as such "prime rate" may change from time to
time. If The Wall Street Journal ceases to publish the "prime rate," then the
Master Servicer shall select an equivalent publication that publishes such
"prime rate"; and if such "prime rate" is no longer generally published or is
limited, regulated or administered by a governmental or quasi-governmental body,
then the Master Servicer shall select a comparable interest rate index. In
either case, such selection shall be made by the Master Servicer in its sole
discretion and the Master Servicer shall notify the Certificate Administrator
and the Special Servicer in writing of its selection.
"Principal Distribution Amount": With respect to any Distribution
Date, the aggregate of the following (without duplication):
(a) the aggregate of the principal portions of all Periodic Payments
(other than Balloon Payments) and any Assumed Periodic Payments due or
deemed due in respect of the Trust Mortgage Loans for their respective Due
Dates occurring during the related Collection Period, to the extent paid
by the related Mortgagor during or prior to, or otherwise received during,
the related Collection Period or advanced with respect to such
Distribution Date;
(b) the aggregate of all Principal Prepayments received on the Trust
Mortgage Loans during the related Collection Period;
(c) with respect to any Trust Mortgage Loan as to which the related
Stated Maturity Date occurred during or prior to the related Collection
Period, any payment of principal (other than a Principal Prepayment) made
by or on behalf of the related Mortgagor during the related Collection
Period (including any Balloon Payment), net of any portion of such payment
that represents a recovery of the principal portion of any Periodic
Payment (other than a Balloon Payment) due, or the principal portion of
any Assumed Periodic Payment deemed due, in respect of such Trust Mortgage
Loan on a Due Date during or prior to the related Collection Period and
included as part of the Principal Distribution Amount for such
Distribution Date or any prior Distribution Date pursuant to clause (a)
above;
(d) the aggregate of all Liquidation Proceeds, Insurance Proceeds
and, to the extent not otherwise included in clause (a), (b) or (c) above,
payments and revenues that were received on the Trust Mortgage Loans
during the related Collection Period and that were identified and applied
by the Master Servicer and/or Special Servicer (or, in the case of the
Glendale Galleria Trust Mortgage Loan, if applicable, by the MLMT Series
2005-CKI1 Applicable Servicer) as recoveries of principal of the Trust
Mortgage Loans, in each case net of any portion of such amounts that
represents a recovery of the principal portion of any Periodic Payment
(other than a Balloon Payment) due, or of the principal portion of any
Assumed Periodic Payment deemed due, in respect of the related Trust
Mortgage Loan on a Due Date during or prior to the related Collection
Period and included as part of the Principal Distribution Amount for such
Distribution Date or any prior Distribution Date pursuant to clause (a)
above;
(e) with respect to any REO Properties, the aggregate of the
principal portions of all Assumed Periodic Payments deemed due in respect
of the related Trust REO Loans for their respective Due Dates occurring
during the related Collection Period to the extent received (in the form
of REO Revenues or otherwise) during the related Collection Period or
advanced with respect to such Distribution Date;
(f) with respect to any REO Properties, the aggregate of all
Liquidation Proceeds, Insurance Proceeds and REO Revenues that were
received during the related Collection Period on such REO Properties and
that were identified and applied by the Master Servicer and/or Special
Servicer (or, in the case of any Glendale Galleria REO Property, if
applicable, by the MLMT Series 2005-CKI1 Applicable Servicer) as
recoveries of principal of the related Trust REO Loans, in each case net
of any portion of such amounts that represents a recovery of the principal
portion of any Periodic Payment (other than a Balloon Payment) due, or of
the principal portion of any Assumed Periodic Payment deemed due, in
respect of the related Trust REO Loan or the predecessor Trust Mortgage
Loan on a Due Date during or prior to the related Collection Period and
included as part of the Principal Distribution Amount for such
Distribution Date or any prior Distribution Date pursuant to clause (a) or
(e) above; and
(g) if such Distribution Date is subsequent to the initial
Distribution Date, the excess, if any, of the Principal Distribution
Amount for the immediately preceding Distribution Date, over the aggregate
distributions of principal made on the Sequential Pay Certificates
(exclusive of the Class A-3FL and the Class A-4FC Certificates), the Class
A-3FL REMIC II Regular Interest and the Class A-4FC REMIC II Regular
Interest on such immediately preceding Distribution Date pursuant to
Section 4.01;
provided that if any Nonrecoverable Advance or Workout-Delayed Reimbursement
Amount is reimbursed, or interest on any Nonrecoverable Advance is paid, from
collections on the Mortgage Pool received during the related Collection Period
that are allocable as principal, as provided in Section 1.02(a), then the
Principal Distribution Amount for the subject Distribution Date for any Loan
Group shall be reduced (to not less than zero) for such Loan Group as and to the
extent provided in Section 1.02(b); and provided, further, that if any Recovered
Amounts are received during the related Collection Period, then the Principal
Distribution Amount for the subject Distribution Date for either Loan Group
shall be increased for such Loan Group as and to the extent provided in Section
1.02(c).
Any allocation of the Principal Distribution Amount between Loan Group 1
and Loan Group 2 for purposes of calculating the Loan Group 1 Principal
Distribution Amount and the Loan Group 2 Principal Distribution Amount shall
take into account Section 1.02.
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan that is received in advance of its scheduled Due
Date; and provided that it shall not include a payment of principal that is
accompanied by an amount of interest representing scheduled interest due on any
date or dates in any month or months subsequent to the month of prepayment.
"Principal Recovery Fee": With respect to each Specially Serviced
Mortgage Loan and REO Loan, the fee payable to the Special Servicer out of
certain related recoveries pursuant to the third paragraph of Section 3.11(c).
"Principal Recovery Fee Rate": With respect to all amounts set forth
in the third paragraph of Section 3.11(c), 1.0%.
"Privileged Person": Any Certificateholder, any Certificate Owner,
any prospective transferee of a Certificate or interest therein, any Rating
Agency, any Mortgage Loan Seller, any Non-Trust Noteholder, any Underwriter or
any party hereto; provided that no Certificate Owner or prospective transferee
of a Certificate or an interest therein shall be considered a "Privileged
Person" or be entitled to a password or restricted access as contemplated by
Section 3.15 unless such Person has delivered to the Trustee, the Certificate
Administrator or the Master Servicer, as applicable, a certification in the form
of Exhibit I-1 or Exhibit I-2 (or such other form as may be reasonably
acceptable to the Trustee, the Certificate Administrator or the Master Servicer,
as applicable), as applicable.
"Proposed Plan": As defined in Section 3.17(a)(iii).
"Prospectus": The prospectus dated July 12, 2005, as supplemented by
the Prospectus Supplement, relating to the Registered Certificates.
"Prospectus Supplement": The final prospectus supplement dated
December 16, 2005 of the Depositor relating to the registration of the
Registered Certificates under the Securities Act.
"Purchase Option": As defined in Section 3.18(c).
"Purchase Option Notice": As defined in Section 3.18(e).
"Purchase Price": With respect to any Trust Mortgage Loan (or Trust
REO Loan), a cash price equal to the outstanding principal balance of such Trust
Mortgage Loan (or Trust REO Loan) as of the date of purchase, together with (a)
all accrued and unpaid interest on such Trust Mortgage Loan (or Trust REO Loan)
at the related Mortgage Rate (other than Additional Interest) to but not
including the Due Date in the Collection Period of purchase, (b) any accrued
interest on P&I Advances (other than Unliquidated Advances in respect of prior
P&I Advances) made with respect to such Trust Mortgage Loan (or Trust REO Loan),
(c) all related and unreimbursed (from collections on such Trust Mortgage Loan
and, if such Trust Mortgage Loan is part of a Loan Combination, any related
Non-Trust Loan (or Trust REO Loan and, if such Trust REO Loan is a successor to
a Trust Mortgage Loan that is part of a Loan Combination, any related REO Loan
that is a successor to a related Non-Trust Loan)) Servicing Advances (together
with Unliquidated Advances) plus any accrued and unpaid interest thereon (other
than on Unliquidated Advances), (d) any reasonable costs and expenses,
including, but not limited to, the cost of any enforcement action (including
reasonable legal fees), incurred by the Master Servicer, the Special Servicer or
the Trust Fund in connection with any such purchase by a Mortgage Loan Seller
(to the extent not included in clause (c) above) and Principal Recovery Fees
payable (to the extent payable pursuant to Section 3.11(c)) with respect to such
Trust Mortgage Loan (or Trust REO Loan), and (e) any other Additional Trust Fund
Expenses in respect of such Trust Mortgage Loan (or Trust REO Loan) (including
any Additional Trust Fund Expenses (which includes Special Servicing Fees and
Workout Fees) previously reimbursed or paid by the Trust Fund but not so
reimbursed by the related Mortgagor or from related Insurance Proceeds or
Liquidation Proceeds); provided that the Purchase Price shall not be reduced by
any outstanding P&I Advance.
"Qualified Institutional Buyer" or "QIB": A "qualified institutional
buyer" within the meaning of Rule 144A under the Securities Act.
"Qualified Insurer": An insurance company or security or bonding
company qualified to write the related Insurance Policy in the relevant
jurisdiction (i) with a minimum claims paying ability rating of at least "A-" by
S&P and "A3" by Xxxxx'x (or the obligations of which are guaranteed or backed by
a company having such a claims paying ability) and (ii) with respect to the
fidelity bond and errors and omissions Insurance Policy required to be
maintained pursuant to Section 3.07(c), an insurance company that has a claims
paying ability rated no lower than two rating categories (without regard to
pluses or minuses or numerical qualifications) below the rating assigned to the
then highest rated outstanding Certificate, but in no event lower than "A-" by
S&P and "A3" by Xxxxx'x (or the obligations of which are guaranteed or backed by
a company having such a claims paying ability) or, in the case of clauses (i)
and (ii), such other rating as each Rating Agency shall have confirmed in
writing will not result in an Adverse Rating Event.
"Qualified Substitute Mortgage Loan": A mortgage loan which must, on
the date of substitution: (i) have an outstanding principal balance, after
application of all scheduled payments of principal and interest due during or
prior to the month of substitution, not in excess of the Stated Principal
Balance of the deleted Trust Mortgage Loan as of the Due Date in the calendar
month during which the substitution occurs; (ii) have a Mortgage Rate not less
than the Mortgage Rate of the deleted Trust Mortgage Loan; (iii) have the same
Due Date as and a grace period no longer than the deleted Trust Mortgage Loan;
(iv) accrue interest on the same basis as the deleted Trust Mortgage Loan (for
example, on the basis of a 360-day year consisting of twelve 30-day months); (v)
have a remaining term to stated maturity not greater than, and not more than two
years less than, the remaining term to stated maturity of the deleted Trust
Mortgage Loan; (vi) have a then current Loan-to-Value Ratio not higher than that
of the deleted Trust Mortgage Loan and a current Loan-to-Value Ratio not higher
than the then current Loan-to-Value Ratio of the deleted Trust Mortgage Loan;
(vii) comply as of the date of substitution with all of the representations and
warranties set forth in the applicable Mortgage Loan Purchase Agreement; (viii)
have an Environmental Assessment that indicates no adverse environmental
conditions and an engineering report that indicates no adverse physical
condition with respect to the related Mortgaged Property and which will be
delivered as a part of the related Mortgage File; (ix) have a current Debt
Service Coverage Ratio of not less than the greater of the original Debt Service
Coverage Ratio of the deleted Trust Mortgage Loan and the current Debt Service
Coverage Ratio of the deleted Trust Mortgage Loan; (x) be determined by an
Opinion of Counsel (at the applicable Mortgage Loan Seller's expense) to be a
"qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the
Code; (xi) not have a maturity date after the date two years prior to the Rated
Final Distribution Date; (xii) not be substituted for a deleted Trust Mortgage
Loan unless the Trustee has received prior confirmation in writing by each
Rating Agency that such substitution will not result in an Adverse Rating Event
(the cost, if any, of obtaining such confirmation to be paid by the applicable
Mortgage Loan Seller); (xiii) have a date of origination that is not more than
12 months prior to the date of substitution; (xiv) have been approved by the
Controlling Class Representative (or, if there is no Controlling Class
Representative then serving, by the Holders of Certificates representing a
majority of the Voting Rights allocated to the Controlling Class), which
approval may not be unreasonably withheld or delayed; (xv) not be substituted
for a deleted Trust Mortgage Loan if it would result in the termination of the
REMIC status of any of the REMICs established under this Agreement or the
imposition of tax on any of such REMICs other than a tax on income expressly
permitted or contemplated to be received by the terms of this Agreement, as
determined by an Opinion of Counsel (at the applicable Mortgage Loan Seller's
expense); and (xvi) have comparable prepayment restrictions. In the event that
one or more mortgage loans are substituted for one or more deleted Trust
Mortgage Loans, then the amounts described in clause (i) shall be determined on
the basis of aggregate principal balances and the rates described in clause (ii)
above (provided that the lowest Net Mortgage Rate shall not be lower than the
highest fixed Pass-Through Rate of any Class of Sequential Pay Certificates
outstanding) and the remaining term to stated maturity referred to in clause (v)
above shall be determined on a weighted average basis. When a Qualified
Substitute Mortgage Loan is substituted for a deleted Trust Mortgage Loan, the
applicable Mortgage Loan Seller shall certify that the proposed Qualified
Substitute Mortgage Loan meets all of the requirements of the above definition
and shall send such certification to the Trustee.
"Rated Final Distribution Date": The Distribution Date in January
2044.
"Rating Agency": Each of S&P and Xxxxx'x.
"Realized Loss": With respect to: (1) each Specially Serviced
Mortgage Loan or Corrected Mortgage Loan as to which a Final Recovery
Determination has been made, or with respect to any successor REO Loan as to
which a Final Recovery Determination has been made as to the related REO
Property and with respect to the Glendale Galleria Trust Mortgage Loan or any
successor Trust REO Loan with respect thereto, if a Final Recovery Determination
has been made in respect thereof by the MLMT Series 2005-CKI1 Special Servicer,
an amount (not less than zero) equal to (a) the unpaid principal balance of such
Mortgage Loan or REO Loan, as the case may be, as of the commencement of the
Collection Period in which the Final Recovery Determination was made, plus (b)
without taking into account the amount described in subclause (1)(d) of this
definition, all accrued but unpaid interest on such Mortgage Loan or such REO
Loan, as the case may be, at the related Mortgage Rate to but not including the
Due Date in the Collection Period in which the Final Recovery Determination was
made (exclusive of any portion thereof that constitutes Penalty Interest,
Additional Interest, Prepayment Premiums or Yield Maintenance Charges), plus (c)
any related unpaid servicing expenses, any related Servicing Advances (together
with Unliquidated Advances in respect of prior related Servicing Advances) that,
as of the commencement of the Collection Period in which the Final Recovery
Determination was made, had not been reimbursed from the subject Mortgage Loan
or REO Property, as the case may be, and any new related Servicing Advances made
during such Collection Period, minus (d) all payments and proceeds, if any,
received in respect of and allocable to such Mortgage Loan or such REO Loan, as
the case may be, during the Collection Period in which such Final Recovery
Determination was made net of any portion of such payments and/or proceeds that
is payable or reimbursable in respect of the related liquidation and other
servicing expenses and, in the case of a Trust Mortgage Loan or Trust REO Loan
that is part of a Loan Combination, net of any portion of such payments and/or
proceeds that represent Liquidation Proceeds payable to the holder of the
related Non-Trust Loan(s); (2) each defaulted Mortgage Loan as to which any
portion of the principal or previously accrued interest (other than Additional
Interest and Penalty Interest) payable thereunder or any Unliquidated Advance
was canceled in connection with a bankruptcy or similar proceeding involving the
related Mortgagor or a modification, waiver or amendment of such Mortgage Loan
granted or agreed to by the Special Servicer pursuant to Section 3.20 (or, in
the case of the Glendale Galleria Trust Mortgage Loan, by the MLMT Series
2005-CKI1 Applicable Servicer pursuant to the MLMT Series 2005-CKI1 Pooling and
Servicing Agreement), the amount of such principal and/or interest or
Unliquidated Advance so canceled; (3) each Mortgage Loan as to which the
Mortgage Rate thereon has been permanently reduced and not recaptured for any
period in connection with a bankruptcy or similar proceeding involving the
related Mortgagor or a modification, waiver or amendment of such Mortgage Loan
granted or agreed to by the Special Servicer pursuant to Section 3.20 (or, in
the case of the Glendale Galleria Trust Mortgage Loan, by the MLMT Series
2005-CKI1 Applicable Servicer pursuant to the MLMT Series 2005-CKI1 Pooling and
Servicing Agreement), the amount of the consequent reduction in the interest
portion of each successive Periodic Payment due thereon (each such Realized Loss
shall be deemed to have been incurred on the Due Date for each affected Periodic
Payment); (4) each Trust Mortgage Loan or Trust REO Loan as to which there were
any Nonrecoverable Advances, the amount of any such Nonrecoverable Advance
reimbursed (and/or interest thereon paid) from amounts that would have otherwise
been distributable as principal on the Certificates; and (5) each Trust Mortgage
Loan purchased from the Trust Fund at a price less than the Purchase Price
therefor, the amount of the deficiency.
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Recording/Filing Agent": As defined in Section 2.01(d).
"Recovered Amount": As defined in Section 1.02(c).
"Registered Certificate": Any Class A-1, Class X-0, Xxxxx X-0, Class
A-3FL, Class A-1A, Class A-SB, Class A-4, Class A-4FC, Class AM, Class AJ, Class
B, Class C, Class D or Class X Certificate.
"Regular Certificate": Any REMIC II Certificate other than a Class
R-II Certificate.
"Regulation S": Regulation S under the Securities Act.
"Regulation S Global Certificate": With respect to any Class of
Book-Entry Non-Registered Certificates offered and sold outside of the United
States in reliance on Regulation S, one or collectively more global Certificates
of such Class registered in the name of the Depository or its nominee, in
definitive, fully registered form without interest coupons, each of which
Certificates bears a Regulation S CUSIP number.
"Reimbursement Rate": The rate per annum applicable to the accrual
of interest on Servicing Advances in accordance with Section 3.03(d) and on P&I
Advances in accordance with Section 4.03(d), which rate per annum is equal to
the Prime Rate.
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code (or any successor thereto).
"REMIC Administrator": The Certificate Administrator or any REMIC
administrator appointed pursuant to Section 8.14.
"REMIC I": The segregated pool of assets subject hereto,
constituting the primary trust created hereby and to be administered hereunder
with respect to which a separate REMIC election is to be made and, consisting
of: (i) all of the Trust Mortgage Loans as from time to time are subject to this
Agreement and all payments under and proceeds of such Trust Mortgage Loans
received after the Closing Date (excluding all Additional Interest on such Trust
Mortgage Loans), together with all documents included in the related Mortgage
Files and any related Escrow Payments and Reserve Funds; (ii) all amounts
(inclusive of the Closing Date Deposit but exclusive of all Additional Interest)
held from time to time in the Collection Account, the Interest Reserve Account,
any Pool REO Account, the Gain-on-Sale Reserve Account, any Loan Combination
Custodial Account and the Distribution Account (exclusive of amounts held on
behalf of REMIC II); (iii) any REO Property acquired in respect of a Trust
Mortgage Loan (or, in the case of the Glendale Galleria Trust Mortgage Loan, the
rights of the holder thereof with respect to any related Glendale Galleria REO
Property under the MLMT Series 2005-CKI1 Pooling and Servicing Agreement); (iv)
the rights of the Depositor under Sections 2, 3, 8, 9, 10, 11, 12, 13, 14, 16,
17, 19 and 20 of each of the Mortgage Loan Purchase Agreements with respect to
the Trust Mortgage Loans; and (v) the rights of the mortgagee under all
Insurance Policies with respect to the Trust Mortgage Loans; provided that REMIC
I shall not include any Non-Trust Loan or any successor REO Loan with respect
thereto or any payments or other collections of principal, interest, Prepayment
Premiums, Yield Maintenance Charges or other amounts collected on a Non-Trust
Loan or any successor REO Loan with respect thereto.
"REMIC I Principal Balance": The principal amount of any REMIC I
Regular Interest outstanding as of any date of determination. As of the Closing
Date, the initial REMIC I Principal Balance of each REMIC I Regular Interest
shall be the amount set forth as such in the Preliminary Statement hereto. On
each Distribution Date, the REMIC I Principal Balance of each REMIC I Regular
Interest shall be permanently reduced by all distributions of principal deemed
to have been made in respect of such REMIC I Regular Interest on such
Distribution Date pursuant to Section 4.01(h), and shall be further permanently
reduced on such Distribution Date by all Realized Losses and Additional Trust
Fund Expenses deemed to have been allocated thereto on such Distribution Date
pursuant to first paragraph of Section 4.04(b). The REMIC I Principal Balance of
a REMIC I Regular Interest shall be increased, pursuant to the second paragraph
of Section 4.04(b), in connection with increases in the Class Principal Balance
of the Corresponding Certificates as contemplated by the second paragraph of
Section 4.04(a).
"REMIC I Regular Interest": Any of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
"regular interest" in REMIC I, as described in the Preliminary Statement hereto.
"REMIC II": The segregated pool of assets consisting of all of the
REMIC I Regular Interests and all amounts held from time to time, to the extent
related to REMIC II, in the Distribution Account conveyed in trust to the
Trustee for the benefit of REMIC II, as holder of the REMIC I Regular Interests,
and the Holders of the Class R-II Certificates pursuant to Section 2.07, with
respect to which a separate REMIC election is to be made.
"REMIC II Certificate": Any Class A-1, Class A-2, Class A-3, Class
A-1A, Class A-SB, Class A-4, Class AM, Class AJ, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class P, Class Q, Class X or Class R-II Certificate.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and proposed, temporary and final Treasury regulations and any
published rulings, notices and announcements promulgated thereunder, as the
foregoing may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code.
"REO Account": The Pool REO Account or any Loan Combination REO
Account, as applicable.
"REO Acquisition": The acquisition of any REO Property pursuant to
Section 3.09 or, in the case of the Glendale Galleria Mortgaged Property,
pursuant to the MLMT Series 2005-CKI1 Pooling and Servicing Agreement.
"REO Disposition": The sale or other disposition of any REO Property
pursuant to Section 3.18 or, in the case of the Glendale Galleria Mortgaged
Property, pursuant to the MLMT Series 2005-CKI1 Pooling and Servicing Agreement.
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The Mortgage Loan (or, if a Loan Combination is
involved, one of the Mortgage Loans comprising the subject Loan Combination)
deemed for purposes hereof to be outstanding with respect to each REO Property.
Each REO Loan shall be deemed to be outstanding for so long as the related REO
Property (or an interest therein) remains part of REMIC I and shall be deemed to
provide for periodic payments of principal and/or interest equal to its Assumed
Periodic Payment and otherwise to have the same terms and conditions as its
predecessor Mortgage Loan (such terms and conditions to be applied without
regard to the default on such predecessor Mortgage Loan and the acquisition of
the related REO Property as part of the Trust Fund or, if applicable in the case
of any REO Property that relates to a Loan Combination, on behalf of the Trust
and the related Non-Trust Noteholder(s)). Each REO Loan shall be deemed to have
an initial unpaid principal balance and Stated Principal Balance equal to the
unpaid principal balance and Stated Principal Balance, respectively, of its
predecessor Mortgage Loan as of the date of the related REO Acquisition. All
Periodic Payments (other than a Balloon Payment), Assumed Periodic Payments (in
the case of a Balloon Loan delinquent in respect of its Balloon Payment) and
other amounts due and owing, or deemed to be due and owing, in respect of the
predecessor Mortgage Loan as of the date of the related REO Acquisition, shall
be deemed to continue to be due and owing in respect of an REO Loan. Collections
in respect of each REO Loan (after provision for amounts to be applied to the
payment of, or to be reimbursed to, the Master Servicer, the Special Servicer,
the Certificate Administrator or the Trustee for the payment of, the costs of
operating, managing, selling, leasing and maintaining the related REO Property
(other than the Glendale Galleria REO Property) or for the reimbursement of or
payment to the Master Servicer, the Special Servicer or the Trustee for other
related Servicing Advances as provided in this Agreement, interest on such
Advances and other related Additional Trust Fund Expenses) shall be treated:
first, as a recovery of accrued and unpaid interest on such REO Loan at the
related Mortgage Rate (in the case of the Trust REO Loan that relates to the
Glendale Galleria Trust Mortgage Loan, net of the MLMT Series 2005-CKI1
Servicing Fee) to but not including the Due Date in the Collection Period of
receipt (exclusive of any portion thereof that constitutes Additional Interest);
second, as a recovery of principal of such REO Loan to the extent of its entire
unpaid principal balance; and third, in accordance with the normal servicing
practices of the Master Servicer, as a recovery of any other amounts due and
owing in respect of such REO Loan, including, without limitation, (i) Yield
Maintenance Charges, Prepayment Premiums and Penalty Interest and (ii)
Additional Interest and other amounts, in that order; provided, however, that if
a Mortgage Loan that is part of a Loan Combination and the related Non-Trust
Loan(s) become REO Loans, amounts received with respect to such REO Loans shall
be applied to amounts due and owing in respect of such REO Loans as provided in
the related Loan Combination Intercreditor Agreement. Notwithstanding the
foregoing, all amounts payable or reimbursable to the Master Servicer, the
Special Servicer, the Certificate Administrator or the Trustee, as the case may
be, in respect of the predecessor Mortgage Loan as of the date of the related
REO Acquisition, including, without limitation, any unpaid Servicing Fees and
any unreimbursed Advances, together with any interest accrued and payable to the
Master Servicer, the Special Servicer or the Trustee, as the case may be, in
respect of such Advances in accordance with Sections 3.03(d) and 4.03(d), shall
continue to be payable or reimbursable to the Master Servicer, the Special
Servicer, the Certificate Administrator or the Trustee, as the case may be, in
respect of an REO Loan pursuant to Section 3.05(a). In addition, Workout-Delayed
Reimbursement Amounts and Nonrecoverable Advances with respect to such REO Loan,
in each case, that were paid from collections on the Trust Mortgage Loans and
resulted in principal distributed to the Certificateholders being reduced as a
result of the first proviso in the definition of "Principal Distribution
Amount," shall be deemed outstanding until recovered.
"REO Property": With respect to any Mortgage Loan (other than a
Mortgage Loan constituting part of a Loan Combination), a Mortgaged Property
acquired on behalf and in the name of the Trust Fund for the benefit of the
Certificateholders through foreclosure, acceptance of a deed-in-lieu of
foreclosure or otherwise in accordance with applicable law in connection with
the default or imminent default of a Mortgage Loan; and with respect to a Loan
Combination, the related Loan Combination REO Property; and with respect to the
Glendale Galleria Loan Combination, the Glendale Galleria REO Property; provided
that the Glendale Galleria Mortgaged Property shall constitute an REO Property
if acquired under the MLMT Series 2005-CKI1 Pooling and Servicing Agreement for
the benefit of all the related Non-Trust Noteholders and the Trust, as their
interests may appear, through foreclosure, acceptance of a deed-in-lieu of
foreclosure or otherwise in accordance with applicable law in connection with a
default or imminent default of the Glendale Galleria Loan Combination.
"REO Revenues": All income, rents, profits and proceeds derived from
the ownership, operation or leasing of any REO Property.
"REO Tax": As defined in Section 3.17(a)(i).
"Request for Release": A request signed by a Servicing Officer, as
applicable, of the Master Servicer in the form of Exhibit D-1 attached hereto or
of the Special Servicer in the form of Exhibit D-2 attached hereto.
"Required Appraisal": With respect to each Required Appraisal
Mortgage Loan, an appraisal of the related Mortgaged Property from an
Independent Appraiser selected by the Special Servicer, prepared in accordance
with 12 C.F.R. ss. 225.64 and conducted in accordance with the standards of the
Appraisal Institute.
"Required Appraisal Mortgage Loan": Each Serviced Trust Mortgage
Loan (or, in the case of clause (ii) below, any successor Trust REO Loan with
respect thereto) (i) that is 60 days or more delinquent in respect of any
Periodic Payments, (ii) that becomes an REO Loan, (iii) that has been modified
by the Special Servicer in a manner that affects the amount or timing of any
Periodic Payment (other than a Balloon Payment) (except, or in addition to,
bringing monthly Periodic Payments current and extending the Maturity Date for
less than six months), (iv) 60 days following the receipt by the Special
Servicer of notice that a receiver has been appointed and continues in such
capacity in respect of the related Mortgaged Property, (v) 60 days following the
receipt by the Special Servicer of notice that the related Mortgagor has become
the subject of a bankruptcy proceeding, or (vi) delinquent in respect of its
Balloon Payment for one day or, if the Special Servicer receives, prior to the
Due Date of such Balloon Payment, written evidence from an institutional lender
of such lender's binding commitment to refinance such Trust Mortgage Loan, then
for such longer period beyond the Due Date of such Balloon Payment ending on the
earlier of (1) 60 days after the Due Date of such Balloon Payment and (2) the
expiration of the refinancing commitment; provided, however, that a Required
Appraisal Mortgage Loan shall cease to be a Required Appraisal Mortgage Loan:
(a) with respect to the circumstances described in clauses (i) and
(iii) above, when the related Mortgagor has made three consecutive full
and timely Periodic Payments under the terms of such Trust Mortgage Loan
(as such terms may be changed or modified in connection with a bankruptcy
or similar proceeding involving the related Mortgagor or by reason of a
modification, waiver or amendment granted or agreed to by the Special
Servicer pursuant to Section 3.20); and
(b) with respect to the circumstances described in clauses (iv), (v)
and (vi) above, when such circumstances cease to exist in the reasonable
judgment of the Special Servicer (exercised in accordance with the
Servicing Standard), but, with respect to any bankruptcy or insolvency
proceedings described in clauses (iv) and (v), no later than the entry of
an order or decree dismissing such proceeding, and with respect to the
circumstances described in clause (vi) above, no later than the date that
the Special Servicer agrees to an extension pursuant to Section 3.20
hereof;
so long as at that time no circumstance identified in clauses (i) through (vi)
above exists that would cause the Trust Mortgage Loan to continue to be
characterized as a Required Appraisal Mortgage Loan.
"Required Appraisal Value": With respect to any Mortgaged Property
or REO Property related to a Required Appraisal Mortgage Loan, 90% of an amount
equal to (A) subject to reduction by the Special Servicer in accordance with
Section 3.09(a), the Appraised Value of such Mortgaged Property or REO Property,
as the case may be, as determined by a Required Appraisal or letter update or
internal valuation, if applicable, reduced by (B) the amount of any obligations
secured by liens on such Mortgaged Property that are prior to the lien of such
Required Appraisal Mortgage Loan and estimated liquidation expenses; provided,
however, that for purposes of determining any Appraisal Reduction Amount in
respect of such Required Appraisal Mortgage Loan, such Appraisal Reduction
Amount shall be amended no less often than annually to reflect the Required
Appraisal Value determined pursuant to any Required Appraisal or letter update
of a Required Appraisal or internal valuation, if applicable conducted
subsequent to the original Required Appraisal performed pursuant to Section
3.09(a).
"Reserve Account": The account or accounts created and maintained
pursuant to Section 3.03(f).
"Reserve Funds": With respect to any Serviced Mortgage Loan, any
amounts delivered by the related Mortgagor to be held in escrow by or on behalf
of the mortgagee representing reserves for environmental remediation, repairs,
capital improvements, tenant improvements and/or leasing commissions with
respect to the related Mortgaged Property.
"Residual Certificate": A Class R-I or Class R-II Certificate.
"Responsible Officer": When used with respect to (i) the initial
Trustee, any Vice President, Assistant Vice President or trust officer of the
Trustee having direct responsibility for the administration of this agreement,
(ii) any successor Trustee, any officer or assistant officer in the corporate
trust department of the Trustee, or any other officer or assistant officer of
the Trustee customarily performing functions similar to those performed by any
of the above designated officers to whom a particular matter is referred by the
Trustee because of such officer's knowledge of and familiarity with the
particular subject and (iii) the Certificate Administrator, any officer thereof
having direct responsibility for the administration of this agreement.
"Restricted Servicer Reports": Collectively, to the extent not filed
with the Securities and Exchange Commission, the CMSA Servicer Watch List, the
CMSA Operating Statement Analysis Report, the CMSA NOI Adjustment Worksheet, the
CMSA Financial File, the CMSA Comparative Financial Status Report and the CMSA
Loan Level Reserve/LOC Report.
"Rule 144A Global Certificate": With respect to any Class of
Book-Entry Non-Registered Certificates, one or collectively more global
certificates representing such Class registered in the name of the Depository or
its nominee, in definitive, fully registered form without interest coupons, and
each of which certificates has a Rule 144A CUSIP number.
"S&P": Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., or its successor in interest. If neither such
Rating Agency nor any successor remains in existence, "S&P" shall be deemed to
refer to such other nationally recognized statistical rating organization or
other comparable Person designated by the Depositor, notice of which designation
shall be given to the Trustee, the Master Servicer and the Special Servicer and
the Certificate Administrator, and specific ratings of S&P herein referenced
shall be deemed to refer to the equivalent ratings of the party so designated.
"Xxxxxxxx-Xxxxx Certification": As defined in Section 8.17(a)(iv).
"Scheduled Payment": With respect to any Mortgage Loan, for any Due
Date following the Cut-off Date as of which it is outstanding, the scheduled
Periodic Payment of principal and interest (other than Additional Interest) on
such Mortgage Loan that is or would be, as the case may be, payable by the
related Mortgagor on such Due Date under the terms of the related Mortgage Note
as in effect on the Closing Date, without regard to any subsequent change in or
modification of such terms in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant to Section
3.20 (or, in the case of the Glendale Galleria Trust Mortgage Loan by the MLMT
Series 2005-CKI1 Special Servicer pursuant to the MLMT Series 2005-CKI1 Pooling
and Servicing Agreement) or acceleration of principal by reason of default, and
assuming that each prior Scheduled Payment has been made in a timely manner;
provided, however, that if the related loan documents for a Loan Combination
provide for a single monthly debt service payment for such Loan Combination,
then the Scheduled Payment for each Mortgage Loan comprising such Loan
Combination for any Due Date shall be that portion of the monthly debt service
payment for such Loan Combination and such Due Date that is, in accordance with
the related loan documents and/or the related Loan Combination Intercreditor
Agreement, in the absence of default, allocable to interest at the related
Mortgage Rate on and/or principal of each such Mortgage Loan comprising the
subject Loan Combination.
"Securities Act": The Securities Act of 1933, as amended.
"Securities and Exchange Commission": The United States Securities
and Exchange Commission or any successor.
"Senior Certificate": Any Class A-1, Class X-0, Xxxxx X-0, Class
A-3FL, Class A-1A, Class A-SB, Class A-4, Class A-4FC or Class X Certificate.
"Sequential Pay Certificate": Any Class A-1, Class X-0, Xxxxx X-0,
Class A-3FL, Class A-1A, Class A-SB, Class A-4, Class A-4FC, Class AM, Class AJ,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class P or Class Q Certificate.
"Serviced Mortgage Loan": Each Mortgage Loan or Loan Combination
(including a Specially Serviced Mortgage Loan, but excluding an REO Loan) other
than any Mortgage Loan constituting part of the Glendale Galleria Loan
Combination.
"Serviced Mortgaged Property": The Mortgaged Property securing a
Serviced Mortgage Loan.
"Serviced REO Loan": An REO Loan deemed to be outstanding in respect
of a Serviced Mortgaged Property.
"Serviced Trust Defaulted Mortgage Loan": A Defaulted Mortgage Loan
that is a Trust Mortgage Loan and a Serviced Mortgage Loan.
"Serviced Trust Mortgage Loan": Any Trust Mortgage Loan that is a
Serviced Mortgage Loan. Notwithstanding anything herein to the contrary, in no
event shall the Glendale Galleria Trust Mortgage Loan constitute a Serviced
Trust Mortgage Loan hereunder.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary "out
of pocket" costs and expenses (including attorneys' fees and expenses and fees
of real estate brokers) incurred by or on behalf of the Master Servicer, the
Special Servicer or the Trustee in connection with the servicing of a Serviced
Mortgage Loan, if a default is imminent thereunder or after a default,
delinquency or other unanticipated event, or in connection with the
administration of any Administered REO Property, including, but not limited to,
the cost of (a) compliance with the obligations of the Master Servicer and the
Special Servicer, if any, set forth in Section 3.02 and 3.03, (b) (i) real
estate taxes, assessments, penalties and other similar items, (ii) ground rents
(if applicable), and (iii) premiums on Insurance Policies, in each instance if
and to the extent Escrow Payments (if any) collected from the related Mortgagor
are insufficient to pay such item when due and the related Mortgagor has failed
to pay such item on a timely basis, (c) the preservation, insurance,
restoration, protection and management of a Mortgaged Property, including the
cost of any "force placed" insurance policy purchased by the Master Servicer or
the Special Servicer to the extent such cost is allocable to a particular
Mortgaged Property that the Master Servicer or the Special Servicer is required
to cause to be insured pursuant to Section 3.07(a), (d) obtaining any Insurance
Proceeds or any Liquidation Proceeds of the nature described in clauses
(i)-(iii), (v), (vii) and (viii) of the definition of "Liquidation Proceeds,"
(e) any enforcement or judicial proceedings with respect to a Mortgaged
Property, including, without limitation, foreclosures, (f) any Required
Appraisal or other appraisal expressly required or permitted to be obtained
hereunder, (g) the operation, management, maintenance and liquidation of any REO
Property, including, without limitation, appraisals and compliance with Section
3.16(a) (to the extent not covered by available funds in the applicable REO
Account), (h) obtaining related ratings confirmation (to the extent not paid by
the related Mortgagor), (i) UCC filings (to the extent not reimbursed by the
Mortgagor), (j) compliance with the obligations of the Master Servicer or the
Trustee set forth in Section 2.03(a) or (b) and (k) any other expenditure
expressly designated as a Servicing Advance under this Agreement.
Notwithstanding anything to the contrary, "Servicing Advances" shall not include
allocable overhead of the Master Servicer or the Special Servicer, such as costs
for office space, office equipment, supplies and related expenses, employee
salaries and related expenses and similar internal costs, and expenses or costs
and expenses incurred by any such party in connection with its purchase of a
Mortgage Loan or REO Property, or costs or expenses expressly required to be
borne by the Master Servicer or Special Servicer without reimbursement pursuant
to the terms of this Agreement.
"Servicing Fees": With respect to each Serviced Mortgage Loan and
any successor REO Loan with respect thereto, the Master Servicing Fee and the
Special Servicing Fee. With respect to the Glendale Galleria Trust Mortgage
Loan, the Master Servicing Fee and the MLMT Series 2005-CKI1 Servicing Fee.
"Servicing File": Any documents, certificates, opinions and reports
(other than documents required to be part of the related Mortgage File)
delivered by the related Mortgagor in connection with, or relating to, the
servicing of any Mortgage Loan, and that are reasonably required for the ongoing
administration of the Mortgage Loan, including appraisals, surveys, property
inspection reports, engineering reports, environmental reports, financial
statements, leases, rent rolls and tenant estoppels.
"Servicing Officer": Any officer or employee of the Master Servicer
or the Special Servicer involved in, or responsible for, the administration and
servicing of the Mortgage Loans, whose name and specimen signature appear on a
list of servicing officers furnished by such party to the Trustee, the
Certificate Administrator and the Depositor on the Closing Date, as such list
may be amended from time to time.
"Servicing Standard": shall mean, with respect to the Master
Servicer or the Special Servicer, to service and administer the Serviced
Mortgage Loans and any REO Properties that such party is obligated to service
and administer, on behalf of the Trust and in the best interests of and for the
benefit of the Certificateholders (and with respect to a Loan Combination for
which it is responsible hereunder, the related holders of the Non-Trust Loan as
a collective whole), as determined by the Master Servicer or the Special
Servicer, as applicable, in its good faith and reasonable judgment, in
accordance with applicable law, the terms of this Agreement and the terms of the
Mortgage Loans, and to the extent consistent with the foregoing, as follows: (i)
the same care, skill and diligence as is normal and usual in its general
mortgage servicing and REO property management activities on behalf of third
parties or on behalf of itself, whichever is higher, with respect to comparable
mortgage loans and REO properties; (ii) with a view to the timely collection of
all scheduled payments of principal and interest under the Serviced Mortgage
Loans or, if a Serviced Mortgage Loan comes into and continues in default and
if, in the good faith and reasonable judgment of the Master Servicer or the
Special Servicer, as applicable, no satisfactory arrangements can be made for
the collection of the delinquent payments, the maximization of the recovery on
such Serviced Mortgage Loan to the Certificateholders (as a collective whole)
(or, if a Loan Combination is involved, with a view to the maximization of
recovery on such Loan Combination to the Certificateholders and the related
holders of the Non-Trust Loans (as a collective whole)), on a present value
basis; and (iii) without regard to (A) any other relationship that the Master
Servicer or the Special Servicer, as applicable, or any Affiliate thereof may
have with the related Mortgagor; (B) the ownership of any Certificate or any
related mezzanine loan or Non-Trust Loan by the Master Servicer or the Special
Servicer, as applicable, or any Affiliate thereof; (C) the Master Servicer's
obligation to make Advances; and (D) the right of the Master Servicer or the
Special Servicer, as applicable, or any Affiliate thereof to receive
reimbursement of costs, or the sufficiency of any compensation payable to it,
under this Agreement or with respect to any particular transaction.
"Servicing Transfer Event": With respect to any Serviced Mortgage
Loan, the occurrence of any of the events described in clauses (a) through (g)
of the definition of "Specially Serviced Mortgage Loan."
"Significant Mortgage Loan": At any time of determination, any
Mortgage Loan that (1) has a principal balance of $20,000,000 or more at the
time of determination or has, whether (a) individually, (b) as part of a Crossed
Loan Group or (c) as part of a group of Mortgage Loans made to affiliated
Mortgagors, a principal balance that is equal to or greater than 5% or more of
the aggregate outstanding principal balance of the Mortgage Pool at the time of
determination or (2) is one of the 10 largest Mortgage Loans (which for the
purposes of this definition shall include Crossed Loan Groups and groups of
Mortgage Loans made to affiliated Mortgagors) by outstanding principal balance
at such time.
"Single Certificate": For purposes of Section 4.02, a hypothetical
Certificate of any Class of Regular Certificates, the Class A-3FL Certificates
or the Class A-4FC Certificates evidencing a $1,000 denomination.
"Sole Certificate Owner": As defined in Section 9.01.
"Special Servicer": LNR Partners, Inc., or any successor in interest
thereto, or any successor special servicer appointed as herein provided.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and each REO Loan, the fee designated as such and payable to the
Special Servicer pursuant to the first paragraph of Section 3.11(c).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and each REO Loan, 0.35% per annum.
"Specially Designated Mortgage Loan Documents": With respect to any
Trust Mortgage Loan, the following documents collectively:
(i) the original executed Mortgage Note (or, alternatively, if the
original executed Mortgage Note has been lost, a lost note affidavit and
indemnity with a copy of such Mortgage Note attached thereto);
(ii) an original or a copy of the Mortgage (with or without
recording information);
(iii) the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been issued or
located, an original or a copy of an irrevocable, binding commitment
(which may be a pro forma policy or a marked version of the policy that
has been executed by an authorized representative of the title company or
an agreement to provide the same pursuant to binding escrow instructions
executed by an authorized representative of the title company) to issue
such title insurance policy;
(iv) an original or a copy of any Ground Lease or ground lessor
estoppel; and
(v) a copy of any letter of credit relating to the Trust Mortgage
Loan;
provided that whenever the term "Specially Designated Mortgage Loan Documents"
is used to refer to documents actually received by the Trustee or by a Custodian
on its behalf, such term, with respect to any receipt or certification by the
Trustee or a Custodian on its behalf for documents described in clauses (iv) and
(v) of this definition, shall be deemed to include such documents only to the
extent the Trustee or a Custodian on its behalf has actual knowledge of their
existence; and provided, further, that the only Specially Designated Mortgage
Loan Document with respect to the Glendale Galleria Trust Mortgage Loan shall be
the document described in clause (i) of this definition.
"Specially Serviced Mortgage Loan": Any Serviced Mortgage Loan as to
which any of the following events have occurred:
(a) the related Mortgagor shall have failed to make when due any
Periodic Payment, including a Balloon Payment, and the failure continues
unremedied--
(i) except in the case of a Balloon Payment, for 60 days; or
(ii) solely in the case of a delinquent Balloon Payment, for one
day, unless the related Mortgagor delivers, prior to the Due
Date for such Balloon Payment, written evidence from an
institutional lender of such lender's binding commitment to
refinance such Mortgage Loan, then for such longer period
beyond such Mortgage Loan's maturity date ending on the
earlier of (a) 60 days after the related Maturity Date and (B)
the expiration of the refinancing commitment; or
(b) the Master Servicer or, with the consent of the Controlling
Class Representative, the Special Servicer shall have determined, in its
reasonable judgment (exercised in accordance with the Servicing Standard),
based on, among other things, communications with the related Mortgagor,
that a default in making a Periodic Payment (including a Balloon Payment)
or a default (other than an Acceptable Insurance Default or a default
described in clause (a) above) that may materially impair the value of the
Mortgaged Property as security for the Mortgage Loan, is in each case
likely to occur and is likely to remain unremedied for at least 60 days;
or
(c) the Master Servicer or, with the consent of the Controlling
Class Representative, the Special Servicer shall have determined, in its
reasonable judgment (exercised in accordance with the Servicing Standard),
that a default (other than an Acceptable Insurance Default or a default
described in clause (a) above) has occurred that may materially impair the
value of the Mortgaged Property as security for the Mortgage Loan and the
default continues unremedied beyond the applicable grace period under the
terms of the Mortgage Loan (or, if no grace period is specified, for 60
days, provided that a default that gives rise to an acceleration right
without any grace period shall be deemed to have a grace period equal to
zero); or
(d) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
or the appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs,
shall have been entered against the related Mortgagor; provided that if
such decree or order is discharged, dismissed or stayed within 60 days it
shall not be a Specially Serviced Mortgage Loan (and no Special Servicing
Fees shall be payable); or
(e) the related Mortgagor shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshaling of assets and liabilities or similar proceedings of or
relating to such Mortgagor or of or relating to all or substantially all
of its property; or
(f) the related Mortgagor shall admit in writing its inability to
pay its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute, make an
assignment for the benefit of its creditors, or voluntarily suspend
payment of its obligations; or
(g) the Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with respect to the
related Mortgaged Property;
provided, however, that a Serviced Mortgage Loan will cease to be a Specially
Serviced Mortgage Loan:
(i) with respect to the circumstances described in clause (a) above,
when the related Mortgagor has made three consecutive full and timely
Periodic Payments under the terms of such Mortgage Loan (as such terms may
be changed or modified in connection with a bankruptcy or similar
proceeding involving the related Mortgagor or by reason of a modification,
waiver or amendment granted or agreed to by the Special Servicer pursuant
to Section 3.20);
(ii) with respect to the circumstances described in clauses (b),
(d), (e) and (f) above, when such circumstances cease to exist in the
reasonable judgment of the Special Servicer (exercised in accordance with
the Servicing Standard), but, with respect to any bankruptcy or insolvency
proceedings described in clauses (d), (e) and (f), no later than the entry
of an order or decree dismissing such proceeding;
(iii) with respect to the circumstances described in clause (c)
above, when such default is cured; and
(iv) with respect to the circumstances described in clause (g)
above, when such proceedings are terminated;
so long as at that time no other circumstance identified in clauses (a) through
(g) above exists that would otherwise cause such Serviced Mortgage Loan to
continue to be characterized as a Specially Serviced Mortgage Loan.
During any time an entire Loan Combination is serviced and
administered pursuant to this Agreement, if a Servicing Transfer Event exists
with respect to one Mortgage Loan in such Loan Combination, it will also be
considered to exist for the other Mortgage Loan(s) in such Loan Combination.
"Startup Day": With respect to each of REMIC I and REMIC II, the day
designated as such in Section 10.01(c).
"State and Local Taxes": Taxes imposed by the states of New York,
Illinois, Maryland, Minnesota, Florida and by any other state or local taxing
authorities as may, by notice to the Certificate Administrator, assert
jurisdiction over the Trust Fund or any portion thereof, or which, according to
an Opinion of Counsel addressed to the Certificate Administrator, have such
jurisdiction.
"Stated Maturity Date": With respect to any Mortgage Loan, the Due
Date specified in the Mortgage Note (as in effect on the Closing Date) on which
the last payment of principal is due and payable under the terms of the Mortgage
Note (as in effect on the Closing Date), without regard to any change in or
modification of such terms in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant to Section
3.20 (or, in the case of a Mortgage Loan constituting part of the Glendale
Galleria Loan Combination, by the MLMT Series 2005-CKI1 Special Servicer
pursuant to the MLMT Series 2005-CKI1 Pooling and Servicing Agreement) and, in
the case of an ARD Loan, without regard to its Anticipated Repayment Date.
"Stated Principal Balance": With respect to any Trust Mortgage Loan
as of any date of determination, an amount (which amount shall not be less than
zero) equal to (x) the Cut-off Date Balance of such Trust Mortgage Loan (or, in
the case of a Qualified Substitute Mortgage Loan that is a Trust Mortgage Loan,
the unpaid principal balance thereof after application of all principal payments
due on or before the related date of substitution, whether or not received),
permanently reduced on each Distribution Date, to not less than zero, by (y) the
sum of:
(i) all payments and other collections of principal, if any, with
respect to such Trust Mortgage Loan that are included as part of the
Principal Distribution Amount for such Distribution Date pursuant to
clause(s) (a), (b), (c) and/or (d) of, and without regard to the provisos
to, the definition of "Principal Distribution Amount";
(ii) any other amount received with respect to such Trust Mortgage
Loan during the related Collection Period that is not included among the
payments and other collections of principal described in the immediately
preceding clause (i), as to which there is not and never has been an
outstanding P&I Advance and that is actually applied in reduction of the
amount of principal owing from the related Mortgagor;
(iii) any amount of reduction in the outstanding principal balance
of such Trust Mortgage Loan resulting from a Deficient Valuation that
occurred during the related Collection Period; and
(iv) any related Realized Loss (other than any such loss resulting
from a Deficient Valuation) incurred during the related Collection Period
that represents a loss of principal with respect to that Trust Mortgage
Loan.
With respect to any Trust REO Loan, as of any date of determination,
an amount equal to (x) the Stated Principal Balance of the predecessor Trust
Mortgage Loan as of the date of the related REO Acquisition, permanently reduced
on each subsequent Distribution Date, to not less than zero, by (y) the sum of:
(a) all amounts, if any, collected with respect to the related REO
Property that are allocable as principal of the subject Trust REO Loan and
that are included as part of the Principal Distribution Amount for such
Distribution Date pursuant to clause (e) and/or clause (f) of, and without
regard to the provisos to, the definition of "Principal Distribution
Amount"; and
(b) any related Realized Losses incurred during the related
Collection Period that represents a loss of principal with respect to the
subject Trust REO Loan.
A Trust Mortgage Loan or a Trust REO Loan shall be deemed to be part
of the Trust Fund and to have an outstanding Stated Principal Balance until the
Distribution Date on which the payments or other proceeds, if any, received in
connection with a Liquidation Event in respect thereof 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 a Non-Trust Loan (other than a Glendale Galleria
Subordinate Non-Trust Loan) or any successor REO Loan with respect thereto on
any date of determination, the Stated Principal Balance shall equal the unpaid
principal balance of such Non-Trust Loan or the deemed unpaid principal balance
of such successor REO Loan.
"Subordinated Certificate": Any Class AM, Class AJ, Class B, Class
C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class
M, Class N, Class P, Class Q, Class R-I or Class R-II Certificate.
"Sub-Servicer": Any Person with which the Master Servicer or the
Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The written contract between the Master
Servicer or the Special Servicer, on the one hand, and any Sub-Servicer, on the
other hand, relating to servicing and administration of Mortgage Loans as
provided in Section 3.22.
"Substitution Shortfall Amount": With respect to a substitution
pursuant to or as contemplated by Section 2.03(a) hereof, an amount equal to the
excess, if any, of the Purchase Price of the Trust Mortgage Loan being replaced,
calculated as of the date of substitution over the Stated Principal Balance of
the related Qualified Substitute Mortgage Loan as of the date of substitution.
In the event that one or more Qualified Substitute Mortgage Loans are
substituted (at the same time) for one or more deleted Trust Mortgage Loans, the
Substitution Shortfall Amount shall be determined as provided in the preceding
sentence on the basis of the aggregate Purchase Price of the Trust Mortgage Loan
or Trust Mortgage Loans being replaced and the aggregate Stated Principal
Balance of the related Qualified Substitute Mortgage Loan or Qualified
Substitute Mortgage Loans.
"Surfside Garden Apartments A-Note Trust Mortgage Loan": The A-Note
Trust Mortgage Loan identified as loan number 117 on the Mortgage Loan Schedule
and as being secured by the Surfside Garden Apartments.
"Surfside Garden Apartments B-Note Non-Trust Loan": The B-Note
Non-Trust Loan that relates to the Surfside Garden Apartments A-Note Trust
Mortgage Loan.
"Swap Agreement": Either of the Class A-3FL Swap Agreement or the
Class A-4FC Swap Agreement.
"Swap Counterparty": Either of the Class A-3FL Swap Counterparty or
the Class A-4FC Swap Counterparty.
"Swap Default": With respect to either Swap Agreement, any failure
on the part of the related Swap Counterparty (that continues beyond any
applicable grace period under such Swap Agreement) to (i) make a required
payment under such Swap Agreement as and when due thereunder, (ii) either post
acceptable collateral or find an acceptable replacement Swap Counterparty or
find an acceptable guarantor after a ratings downgrade of the Swap Counterparty
(or its Credit Support Provider (as defined in the related Swap Agreement)) has
occurred, as required by Part 1(m)(2)(ii) of the Schedule to the Master
Agreement in such Swap Agreement.
"Swap Payment Default": A Swap Default of the nature described in
clause (i) of the definition of "Swap Default."
"Swap Termination Fees": With respect to either Swap Agreement, any
fees, costs or expenses payable by the related Swap Counterparty to the Trust in
connection with a Swap Default under such Swap Agreement, termination of such
Swap Agreement or liquidation of such Swap Agreement, as specified in such Swap
Agreement.
"Tax Matters Person": With respect to each of the REMICs created
hereunder, the Person designated as the "tax matters person" of such REMIC in
the manner provided under Treasury Regulations Section 1.860F-4(d), which Person
shall be the applicable Plurality Residual Certificateholder.
"Tax Returns": The federal income tax returns on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each of REMIC I and REMIC II due to its classification
as a REMIC under the REMIC Provisions, the federal income tax return to be filed
on behalf of each of Grantor Trust A-3FL, Grantor Trust A-4FC and the Grantor
Trust Z due to its classification as a grantor trust under the Grantor Trust
Provisions, together with any and all other information, reports or returns that
may be required to be furnished to the Certificateholders or filed with the
Internal Revenue Service under any applicable provisions of federal tax law or
any other governmental taxing authority under applicable State and Local Tax
laws.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit and Agreement": As defined in Section
5.02(d)(i)(B).
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Trust": The common law trust created hereunder.
"Trust ARD Loan": Any Trust Mortgage Loan that is an ARD Loan.
"Trust Balloon Loan": Any Trust Mortgage Loan that is a Balloon
Loan.
"Trust Corrected Mortgage Loan": Any Trust Mortgage Loan that is a
Corrected Mortgage Loan.
"Trust Defaulted Mortgage Loan": Any Trust Mortgage Loan that is a
Defaulted Mortgage Loan.
"Trust Defeasance Mortgage Loan": Any Trust Mortgage Loan that is a
Defeasance Loan.
"Trust Fund": Collectively, (i) all of the assets of REMIC I and
REMIC II (ii) the Grantor Trust Z Assets, (iii) the Grantor Trust A-3FL Assets
and (iv) the Grantor Trust A-4FC Assets.
"Trust Mortgage Loan": Each of the mortgage loans, including any
A-Note Trust Mortgage Loan and the Glendale Galleria Trust Mortgage Loan,
transferred and assigned to the Trust Fund pursuant to Section 2.01 and listed
on the Mortgage Loan Schedule and from time to time held in the Trust Fund.
"Trust REO Loan": Any REO Loan that succeeded a Trust Mortgage Loan.
"Trust Required Appraisal Mortgage Loan": Any Trust Mortgage Loan or
Trust REO Loan that is a Required Appraisal Mortgage Loan.
"Trust Specially Serviced Mortgage Loan": Any Trust Mortgage Loan
that is a Specially Serviced Mortgage Loan.
"Trustee": Xxxxx Fargo Bank, N.A., its successor in interest, or any
successor trustee appointed as herein provided.
"Trustee Fee": With respect to each Trust Mortgage Loan and each
Trust REO Loan for any Distribution Date (excluding, in the case of the initial
Distribution Date, any Closing Date Deposit Mortgage Loan), an amount equal to
one month's interest for the most recently ended calendar month (calculated on
the same interest accrual basis as such Trust Mortgage Loan or Trust REO Loan,
as the case may be), accrued at the Trustee Fee Rate on the Stated Principal
Balance of such Trust Mortgage Loan or Trust REO Loan, as the case may be,
outstanding immediately following the prior Distribution Date (or, in the case
of the initial Distribution Date, as of the Closing Date); provided, that the
portion of the Trustee Fee defined herein as the Certificate Administrator Fee
shall be retained by the Certificate Administrator.
"Trustee Fee Rate": 0.0013% per annum.
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement": A financing statement filed pursuant to
the UCC.
"Underwriter": Each of MLPF&S, Countrywide Securities, LaSalle
Financial Services, Deutsche Bank Securities Inc., JPMorgan Securities Inc. and
Xxxxxx Xxxxxxx & Co. Incorporated, or their respective successors in interest.
"United States Securities Person": Any "U.S. person" as defined in
Rule 902(k) of Regulation S.
"United States Tax Person": A citizen or resident of the United
States, a corporation (except to the extent provided in applicable Treasury
Regulations) or partnership (except to the extent provided in applicable
Treasury Regulations) created or organized in, or under the laws of, the United
States, any state or the District of Columbia or any other entity treated as a
corporation or partnership for federal income tax purposes, an estate whose
income from sources without the United States is includable in gross income for
United States federal income tax purposes regardless of its source or a trust if
a court within the United States is able to exercise supervision over the
administration of the trust and one or more United States persons have the
authority to control all substantial decisions of the trust (or to the extent
provided in the Treasury regulations, if the trust was in existence on August
20, 1996 and elected to be treated as a United States person), all within the
meaning of Section 7701(a)(30) of the Code.
"Unliquidated Advance": Any Advance previously made by a party
hereto that (i) is not a Nonrecoverable Advance, (ii) has been previously
reimbursed to the party that made the Advance as a Workout-Delayed Reimbursement
Amount pursuant to Section 3.05(a)(vii) out of principal collections on other
Trust Mortgage Loans and (iii) was originally made with respect to an item that
has not been subsequently recovered out of collections on or proceeds of the
related Trust Mortgage Loan or any related REO Property (and provided that no
Liquidation Event has occurred with respect to the related Trust Mortgage Loan
or any related REO Property).
"Unrestricted Servicer Reports": Collectively, the CMSA Delinquent
Loan Status Report, the CMSA Historical Loan Modification and Corrected Mortgage
Loan Report, the CMSA Historical Liquidation Report, the CMSA REO Status Report,
the CMSA Advance Recovery Report and, if and to the extent filed with the
Securities and Exchange Commission, such reports and files as would, but for
such filing, constitute Restricted Servicer Reports.
"USAP": The Uniform Single Attestation Program for Mortgage Bankers
established by the Mortgage Bankers of America.
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times during the term
of this Agreement, 100% of the Voting Rights shall be allocated among the
Holders of the Regular Certificates, the Class A-3FL Certificates and the Class
A-4FC Certificates. Ninety-eight percent (98%) of the Voting Rights shall be
allocated among the Class A-1, Class X-0, Xxxxx X-0, Class A-3FL, Class A-1A,
Class A-SB, Class A-4, Class A-4FC, Class AM, Class AJ, Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class P and Class Q Certificates in proportion to the respective Class
Principal Balances of their Certificates. Two percent (2%) in the aggregate of
the Voting Rights shall be allocated to the Class X Certificates. The Class Z
and the Residual Certificates shall have no voting rights. Voting Rights
allocated to a Class of Certificateholders shall be allocated among such
Certificateholders in standard proportion to the Percentage Interests evidenced
by their respective Certificates. In addition, if the Master Servicer is the
holder of any Certificates, the Master Servicer, in its capacity as a
Certificateholder, shall have no Voting Rights with respect to matters
concerning compensation affecting the Master Servicer.
"Weighted Average Net Mortgage Pass-Through Rate": With respect to
any Distribution Date, the rate per annum equal to the weighted average,
expressed as a percentage and rounded to six decimal places, of the respective
Net Mortgage Pass-Through Rates applicable to the Trust Mortgage Loans and any
Trust REO Loans for such Distribution Date, weighted on the basis of their
respective Stated Principal Balances immediately following the preceding
Distribution Date (or, in the case of the initial Distribution Date, as of the
Closing Date).
"Workout-Delayed Reimbursement Amounts": With respect to any Trust
Mortgage Loan, the amount of any Advance made with respect to such Trust
Mortgage Loan on or before the date such Trust Mortgage Loan becomes (or, but
for the making of three monthly payments under its modified terms, would then
constitute) a Trust Corrected Mortgage Loan, together with (to the extent
accrued and unpaid) interest on such Advances accruing before, on and after such
date, to the extent that (i) such Advance is not reimbursed to the Person who
made such Advance on or before the date, if any, on which such Trust Mortgage
Loan becomes a Trust Corrected Mortgage Loan and (ii) the amount of such Advance
becomes an obligation of the Mortgagor to pay such amount under the terms of the
modified loan documents. That any amount constitutes all or a portion of any
Workout-Delayed Reimbursement Amount shall not in any manner limit the right of
any Person hereunder to determine that such amount instead constitutes a
Nonrecoverable Advance.
"Workout Fee": With respect to each Corrected Mortgage Loan, the fee
designated as such and payable to the Special Servicer pursuant to the second
paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Mortgage Loan,
1.00%.
"Yield Maintenance Charge": Payments paid or payable, as the context
requires, on a Mortgage Loan as the result of a Principal Prepayment thereon,
not otherwise due thereon in respect of principal or interest, which have been
calculated (based on Scheduled Payments on such Mortgage Loan) to compensate the
holder for reinvestment losses based on the value of an interest rate index at
or near the time of prepayment. Any other prepayment premiums, penalties and
fees not so calculated will not be considered "Yield Maintenance Charges." In
the event that a Yield Maintenance Charge shall become due for any particular
Mortgage Loan, the Master Servicer or the Special Servicer, as applicable, shall
be required to follow the terms and provisions contained in the applicable
Mortgage Note, provided, however, in the event the particular Mortgage Note
shall not specify the U.S. Treasuries which shall be used in determining the
discount rate or the reinvestment yield to be applied in such calculation, the
Master Servicer or the Special Servicer, as applicable, shall be required to use
those U.S. Treasuries having maturity dates most closely approximating the
maturity of such Mortgage Loan. Accordingly if either no U.S. Treasury issue, or
more than one U.S. Treasury issue, shall coincide with the term over which the
Yield Maintenance Charge shall be calculated (which depending on the applicable
Mortgage Note is based on the remaining average life of the Mortgage Loan or the
actual term remaining through the Maturity Date), the Master Servicer or the
Special Servicer, as applicable, shall use the U.S. Treasury whose reinvestment
yield is the lowest, with such yield being based on the bid price for such issue
as published in The Wall Street Journal on the date that is fourteen days prior
to the date that the Yield Maintenance Charge shall become due and payable (or,
if such bid price is not published on that date, the next preceding date on
which such bid price is so published) and converted to a monthly compounded
nominal yield. The monthly compounded nominal yield ("MEY") is derived from the
reinvestment yield or discount rate and shall be defined as MEY = 12X
({(1+"BEY"/2)^1/6}-1) where BEY is defined as the U.S. Treasury Reinvestment
Yield which is in decimal form and not in percentage, and 1/6 is the exponential
power to which a portion of the equation is raised. For example, using a BEY of
5.50%, the MEY = 12 X ({(1+ .055/2)^0.16667}-1) where .055 is the decimal
version of the percentage 5.5% and 0.16667 is the decimal version of the
exponential power. The MEY in the above calculation is 5.44%.
SECTION 1.02. Certain Adjustments to the Principal Distributions on
the Certificates.
(a) If any party hereto is reimbursed out of general collections on
the Mortgage Pool on deposit in the Collection Account for (i) any unreimbursed
Advance that has been or is determined to be a Nonrecoverable Advance (together
with interest accrued and payable thereon pursuant to Section 3.03(d) or Section
4.03(d), as applicable, to the extent such interest was paid hereunder from a
source other than related Default Charges) or (ii) any Workout-Delayed
Reimbursement Amount, then (for purposes of calculating distributions on the
Certificates) such reimbursement and payment of interest shall be deemed to have
been made:
first, out of any amounts then on deposit in the Collection Account
that represent payments or other collections of principal received by the
Trust with respect to the Trust Mortgage Loans and/or Trust REO Loans, in
the Loan Group that includes the Trust Mortgage Loan or Trust REO Loan in
respect of which such Nonrecoverable Advance was made or in respect of
which such Workout-Delayed Reimbursement Amount is outstanding, and which
amounts, but for their application to reimburse such Nonrecoverable
Advance (and/or to pay interest thereon) or to reimburse such
Workout-Delayed Reimbursement Amount, as the case may be, would be
included in the Available Distribution Amount for the related Distribution
Date;
second, solely in the case of the reimbursement of a Nonrecoverable
Advance and/or the payment of interest thereon, out of any amounts then on
deposit in the Collection Account that represent any other payments or
other collections of principal received by the Trust with respect to the
Trust Mortgage Loans or Trust REO Loans, in the Loan Group that does not
include the Trust Mortgage Loan or Trust REO Loan in respect of which such
Nonrecoverable Advance was made or in respect of which such
Workout-Delayed Reimbursement Amount is outstanding, and which amounts,
but for their application to reimburse such Nonrecoverable Advance (and/or
to pay interest thereon) or to reimburse such Workout-Delayed
Reimbursement Amount, as the case may be, would be included in the
Available Distribution Amount for the related Distribution Date;
third, solely in the case of the reimbursement of a Nonrecoverable
Advance and/or the payment of interest thereon, out of any amounts then on
deposit in the Collection Account that represent any other payments or
other collections received by the Trust with respect to the Trust Mortgage
Loans or Trust REO Loans in the Loan Group that includes the Trust
Mortgage Loan or Trust REO Loan in respect of which such Nonrecoverable
Advance was made, and which amounts, but for their application to
reimburse a Nonrecoverable Advance and/or to pay interest thereon, would
be included in the Available Distribution Amount for the related
Distribution Date;
fourth, solely in the case of the reimbursement of a Nonrecoverable
Advance and/or the payment of interest thereon, out of any amounts then on
deposit in the Collection Account that represent any other payments or
other collections received by the Trust with respect to the Trust Mortgage
Loans or Trust REO Loans in the Loan Group that does not include the Trust
Mortgage Loan or Trust REO Loan in respect of which such Nonrecoverable
Advance was made, and which amounts, but for their application to
reimburse a Nonrecoverable Advance and/or to pay interest thereon, would
be included in the Available Distribution Amount for the related
Distribution Date; and
fifth, solely in the case of the reimbursement of a Nonrecoverable
Advance and/or the payment of interest thereon, out of any other amounts
then on deposit in the Collection Account.
(b) If and to the extent that any payment or other collection of
principal received on the Mortgage Pool during any Collection Period is deemed
to be applied in accordance with clause first of Section 1.02(a) to reimburse a
Nonrecoverable Advance (or to pay interest thereon) or to reimburse a
Workout-Delayed Reimbursement Amount, then
(i) the Principal Distribution Amount for the related Distribution
Date shall be reduced by the portion of such payment or other collection
of principal that, but for the application of this Section 1.02(b), would
constitute part of such Principal Distribution Amount; and
(ii) depending on whether such payment or other collection of
principal relates to Loan Group 1 or Loan Group 2, there shall be a
corresponding reduction in the Loan Group 1 Principal Distribution Amount
or the Loan Group 2 Distribution Amount, as applicable, for the related
Distribution Date.
(c) If and to the extent that any Nonrecoverable Advance or
Workout-Delayed Reimbursement Amount is reimbursed or interest on any
Nonrecoverable Advance is paid out of payments or other collections of principal
received on the Mortgage Pool (with a corresponding reduction to the Principal
Distribution Amount, and to either or both of the Loan Group 1 Principal
Distribution Amount and the Loan Group 2 Principal Distribution Amount, for the
relevant Distribution Date), and further if and to the extent that the
particular item for which such Advance was originally made or such
Workout-Delayed Reimbursement Amount is outstanding is subsequently collected
out of payments or other collections in respect of the related Trust Mortgage
Loan or Trust REO Loan (such item, upon collection, a "Recovered Amount"), then
(without duplication of amounts already included therein):
(i) the Principal Distribution Amount for the Distribution Date that
corresponds to the Collection Period in which such Recovered Amount was
received, shall be increased by an amount equal to the lesser of (A) such
Recovered Amount and (B) any previous reduction in the Principal
Distribution Amount for a prior Distribution Date pursuant to Section
1.02(b) above resulting from the reimbursement of the subject
Nonrecoverable Advance (and/or the payment of interest thereon) or the
reimbursement of the subject Workout-Delayed Reimbursement Amount, as the
case may be; and
(ii) the Loan Group 1 Principal Distribution Amount and/or the Loan
Group 2 Principal Distribution Amount for the Distribution Date that
corresponds to the Collection Period in which such Recovered Amount was
received, shall be increased by an amount equal to the lesser of (A) such
Recovered Amount and (B) any previous reduction in the Loan Group 1
Principal Distribution Amount and/or the Loan Group 2 Principal
Distribution Amount, as applicable, for a prior Distribution Date pursuant
to Section 1.02(b) above resulting from the reimbursement of the subject
Nonrecoverable Advance (and/or the payment of interest thereon) or the
reimbursement of the subject Workout-Delayed Reimbursement Amount, as the
case may be;
provided that, if both the Loan Group 1 Principal Distribution Amount and the
Loan Group 2 Principal Distribution Amount for a prior Distribution Date were
reduced pursuant to Section 1.02(b) above as a result of the reimbursement of
the subject Advance (and/or the payment of interest thereon) or the
reimbursement of the subject Workout-Delayed Reimbursement Amount, as the case
may be, and if the subject Recovered Amount is not sufficient to cover the full
amount of such reductions, then such Recovered Amount shall be applied to
increase the Loan Group 1 Principal Distribution Amount and the Loan Group 2
Principal Distribution Amount in accordance with, and to the extent permitted
by, clause (ii) of this Section 1.02(c) in reverse order of the application of
payments and other collections of principal on the respective Loan Groups in
accordance with Section 1.02(a) to reimburse the subject Nonrecoverable Advance
(and/or pay interest thereon) or to reimburse the subject Workout-Delayed
Reimbursement Amount, as the case may be.
(d) For purposes of making the adjustments to the Principal
Distribution Amount, the Loan Group 1 Principal Distribution Amount and the Loan
Group 2 Principal Distribution Amount, respectively, for each Distribution Date
contemplated by this Section 1.02, that amount shall be calculated in accordance
with the respective definitions thereof (without regard to this Section 1.02)
and shall thereafter be adjusted as provided in this Section 1.02.
(e) Nothing contained in this Section 1.02 is intended to limit the
ability of any party hereto that is entitled to reimbursement hereunder for any
unreimbursed Advances that have been or are determined to be Nonrecoverable
Advances (together with interest accrued and payable thereon pursuant to Section
3.03(d) or Section 4.03(d)) to collections of principal received by the Trust
with respect to the Mortgage Pool; instead the order of priority set forth in
Section 1.02(a) is a deemed allocation only for purposes of calculating
distributions on the Certificates.
(f) For purposes of this Section 1.02, notwithstanding any other
provision of this Agreement, the terms "Nonrecoverable Advance" and
"Workout-Delayed Reimbursement Amount" shall include any amounts paid by the
Master Servicer pursuant to Section 3.05(a)(xviii) in reimbursement of
"Nonrecoverable Advances" and "Workout-Delayed Reimbursement Amounts" (in each
case within the meaning of the MLMT Series 2005-CKI1 Pooling and Servicing
Agreement) in respect of the Glendale Galleria Trust Mortgage Loan, any
successor Trust REO Loan with respect thereto or the Glendale Galleria Mortgaged
Property.
SECTION 1.03. Calculation of LIBOR.
(a) The initial value of LIBOR shall be 4.37875% per annum. Such
value of LIBOR shall be utilized in calculating, with respect to the Class A-3FL
Certificates, (i) the Class A-3FL Floating Swap Payment to be made on the Class
A-3FL Swap Payment Date in January 2006 and (ii) the Pass-Through Rate with
respect to the Class A-3FL Certificates for the Distribution Date in January
2006.
(b) The value of LIBOR applicable to the calculation of the Class
A-3FL Floating Swap Payment to be made on the Class A-3FL Swap Payment Date in
any particular calendar month subsequent to January 2006, as well as the
calculation of the respective Pass-Through Rate with respect to the Class A-3FL
Certificates for the Distribution Date in such calendar month (provided that no
Class A-3FL Distribution Conversion is then in effect), shall be determined by
the Certificate Administrator (and promptly reported to the related Swap
Counterparty) on the LIBOR Determination Date in the preceding calendar month in
accordance with the following methodology: LIBOR shall equal the rate for
deposits in U.S. Dollars, for a period equal to one month, which appears on the
Dow Xxxxx Market Service (formerly Telerate) Page 3750 as of 11:00 a.m., London
time, on the applicable LIBOR Determination Date. If that rate does not appear
on the Dow Xxxxx Market Service Page 3750, LIBOR will be determined on the basis
of the rates at which deposits in U.S. Dollars are offered by any five major
reference banks in the London interbank market selected by the Certificate
Administrator to provide that bank's offered quotation of such rates at
approximately 11:00 a.m., London time, on the applicable LIBOR Determination
Date to prime banks in the London interbank market for a period of one month,
commencing on the 12th day of the calendar month in which the applicable LIBOR
Determination Date occurs and in an amount that is representative for a single
such transaction in the relevant market at the relevant time. The Certificate
Administrator shall request the principal London office of any five major
reference banks in the London interbank market selected by the Certificate
Administrator to provide a quotation of those rates, as offered by each such
bank. If at least two such quotations are provided, LIBOR will be the arithmetic
mean of the quotations. If fewer than two quotations are provided as requested,
LIBOR will be the arithmetic mean of the rates quoted by major banks in New York
City selected by the Certificate Administrator, at approximately 11:00 a.m., New
York City time, on the applicable LIBOR Determination Date for loans in U.S.
Dollars to leading European banks for a period equal to one month, commencing on
the applicable LIBOR Determination Date and in an amount that is representative
for a single such transaction in the relevant market at the relevant time. The
determination of LIBOR by the Certificate Administrator will be binding absent
manifest error.
SECTION 1.04. Calculation of CPI Index Rate.
(a) The initial value of the CPI Index Rate shall be 4.686677% per
annum. Such value of the CPI Index Rate shall be utilized in calculating, with
respect to the Class A-4FC Certificates, (i) the Class A-4FC Floating Swap
Payment to be made on the Class A-4FC Swap Payment Date in January 2006 and (ii)
the Pass-Through Rate with respect to the Class A-4FC Certificates for the
Distribution Date in January 2006.
(b) The value of the CPI Index Rate applicable to the calculation of
the Class A-4FC Floating Swap Payment to be made on the Class A-4FC Swap Payment
Date in any particular calendar month subsequent to January 2006, as well as the
calculation of the respective Pass-Through Rate with respect to the Class A-4FC
Certificates for the Distribution Date in such calendar month (provided that no
Class A-4FC Distribution Conversion is then in effect), shall be determined by
the Certificate Administrator (and promptly reported to the related Swap
Counterparty) on the CPI Index Reset Date in the preceding calendar month in
accordance with the following methodology: the CPI Index Rate shall equal the
quotient of (i) (A) CPI(t) minus (B) CPI(t-12), divided by (ii) CPI(t-12).
"CPI(t)" means the CPI for the third calendar month preceding the relevant CPI
Index Reset Date as published and reported in the second calendar month
preceding such CPI Index Reset Date; "CPI (t-12)" means the CPI for the
fifteenth calendar month preceding the relevant CPI Index Reset Date; and "CPI"
means the US City Average Consumer Price Index for All Urban Consumers, not
subject to revisions or seasonal adjustments, as published monthly by the Bureau
of Labor Statistics (BLS) and available on Bloomberg CPURNSA or any successor
service. If the CPI is not published, is subsequently revised, amended, or
replaced, the applicable substitute index will be that chosen by the Secretary
of the Treasury for the Department of Treasury's Inflation Linked Treasuries as
described at 62 Federal Register 846-874 (January 6, 1997). If a previously
reported CPI is revised, the CPI Index Rate shall continue to use the previously
reported CPI in calculating interest payments. If CPI is rebased to a different
year, the CPI Index Rate will continue to use the CPI based on the base
reference year in effect on the Closing Date.
ARTICLE II
CONVEYANCE OF TRUST MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES; ORIGINAL
ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Trust Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery
hereof, does hereby establish a common law trust under the laws of the State of
New York, designated as "Xxxxxxx Xxxxx Mortgage Trust 2005-LC1" and consisting
of the Trust Fund, and does hereby assign, sell, transfer, set over and
otherwise convey to the Trustee, in trust, without recourse, for the benefit of
the Certificateholders (and for the benefit of the other parties to this
Agreement as their respective interests may appear) all the right, title and
interest of the Depositor, in, to and under (i) the Trust Mortgage Loans and all
documents included in the related Mortgage Files and Servicing Files, (ii) the
rights of the Depositor under Sections 2, 3, 8, 9, 10, 11, 12, 13, 14, 16, 17,
19 and 20 of each Mortgage Loan Purchase Agreement, (iii) the rights of the
Depositor under each Loan Combination Intercreditor Agreement, (iv) the rights
of the Depositor under the Glendale Galleria Intercreditor Agreement and (v) all
other assets included or to be included in the Trust Fund. Such assignment
includes all interest and principal received or receivable on or with respect to
the Trust Mortgage Loans and due after the Cut-off Date and, in the case of each
Trust Mortgage Loan that is part of a Loan Combination, is subject to the
provisions of the corresponding Loan Combination Intercreditor Agreement. The
Trustee, on behalf of the Trust, assumes the obligations of the "Note A-2
Holder" under the Glendale Galleria Intercreditor Agreement; provided that the
Master Servicer shall, as further set forth in Article III, perform the
servicing obligations of the "A Note Holder" under each Loan Combination
Intercreditor Agreement that relates to an A/B Loan Combination and perform the
servicing obligations and exercise the related rights of the "Note A-2 Holder"
under the Glendale Galleria Intercreditor Agreement. The transfer of the Trust
Mortgage Loans and the related rights and property accomplished hereby is
absolute and, notwithstanding Section 11.07, is intended by the parties to
constitute a sale.
(b) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above the Depositor shall direct, and hereby represents and
warrants that it has directed, the Mortgage Loan Sellers pursuant to their
respective Mortgage Loan Purchase Agreements to deliver to and deposit with, or
cause to be delivered to and deposited with, the Trustee or a Custodian
appointed thereby (with a copy to the Master Servicer and Special Servicer), on
or before the Closing Date, the Mortgage File for each Trust Mortgage Loan so
assigned. At the request of the Special Servicer, the Master Servicer shall
deliver a copy of the Servicing File to the Special Servicer at no cost to the
Special Servicer if the Special Servicer and Master Servicer reasonably agree
such delivery is required for the Special Servicer to perform its obligations
pursuant to this Agreement. None of the Trustee, the Certificate Administrator,
any Custodian, the Master Servicer or the Special Servicer shall be liable for
any failure by any Mortgage Loan Seller or the Depositor to comply with the
document delivery requirements of the related Mortgage Loan Purchase Agreement
and this Section 2.01(b).
(c) If any Mortgage Loan Seller cannot deliver, or cause to be
delivered, on the Closing Date, as to any Serviced Trust Mortgage Loan, any of
the documents and/or instruments referred to in clauses (a)(ii), (a)(iii),
(a)(vi) (if recorded) and (a)(viii) of the definition of "Mortgage File," with
evidence of recording thereon, solely because of a delay caused by the public
recording office where such document or instrument has been delivered for
recordation, the delivery requirements of the related Mortgage Loan Purchase
Agreement and Section 2.01(b) shall be deemed to have been satisfied as to such
non-delivered document or instrument, and such non-delivered document or
instrument shall be deemed to have been included in the Mortgage File, if a
photocopy of such non-delivered document or instrument (certified by the
applicable Mortgage Loan Seller to be a true and complete copy of the original
thereof submitted for recording) is delivered to the Trustee or a Custodian
appointed thereby on or before the Closing Date, and either the original of such
non-delivered document or instrument, or a photocopy thereof, with evidence of
recording or filing as applicable, thereon, is delivered to the Trustee or such
Custodian within 180 days of the Closing Date (or within such longer period
after the Closing Date as the Trustee may consent to, which consent shall not be
unreasonably withheld so long as the applicable Mortgage Loan Seller is, in good
faith, attempting to obtain from the appropriate county recorder's office such
original or photocopy, as evidenced by an officer's certificate). If the
applicable Mortgage Loan Seller cannot deliver, or cause to be delivered, as to
any Serviced Trust Mortgage Loan, any of the documents and/or instruments
referred to in clauses (a)(ii), (a)(iii), (a)(vi) (if recorded) and (a)(viii) of
the definition of "Mortgage File," with evidence of recording or filing as
applicable, thereon, for any other reason, including, without limitation, that
such non-delivered document or instrument has been lost, the delivery
requirements of the related Mortgage Loan Purchase Agreement and Section 2.01(b)
shall be deemed to have been satisfied as to such non-delivered document or
instrument and such non-delivered document or instrument shall be deemed to have
been included in the Mortgage File, provided that a photocopy of such
non-delivered document or instrument (with evidence of recording in the proper
office thereon and with respect to the item referred to in clause (a)(ii) of the
definition of "Mortgage File," certified by the appropriate county recorder's
office to be a true and complete copy of the original submitted for recording)
is delivered to the Trustee or a Custodian appointed thereby on or before the
Closing Date.
If, on the Closing Date as to any Serviced Trust Mortgage Loan, the
applicable Mortgage Loan Seller does not deliver in complete and recordable form
any one of the assignments in favor of the Trustee referred to in clause (a)(iv)
or (a)(v) of the definition of "Mortgage File" (in the case of clause (a)(iv)
solely because of a delay caused by the recording office where such document or
instrument has been delivered for recordation), the applicable Mortgage Loan
Seller may provisionally satisfy the delivery requirements of the related
Mortgage Loan Purchase Agreement and Section 2.01(b) by delivering with respect
to such Serviced Trust Mortgage Loan on the Closing Date an omnibus assignment
of such Serviced Trust Mortgage Loan; provided that all required original
assignments with respect to such Serviced Trust Mortgage Loan in fully complete
and recordable form shall be delivered to the Trustee or its Custodian within
180 days of the Closing Date (or within such longer period, not to exceed 18
months, as the Trustee in its reasonable discretion may permit so long as the
applicable Mortgage Loan Seller is, as certified in writing to the Trustee no
less often than every 90 days, attempting in good faith to obtain from the
appropriate county recorder's office such original or photocopy).
(d) The Depositor hereby represents and warrants that with respect
to the Xxxxxxx Trust Mortgage Loans, LaSalle Trust Mortgage Loans and
Countrywide Trust Mortgage Loans, the related Mortgage Loan Seller has each
covenanted in the related Mortgage Loan Purchase Agreement that it shall retain
or cause to be retained, an Independent Person (such Person, the
"Recording/Filing Agent") that shall, as to each such Serviced Trust Mortgage
Loan, promptly (and in any event within 180 days following the later of the
Closing Date or the delivery of each assignment and UCC Financing Statement to
the Recording/Filing Agent) cause to be submitted, for recording or filing, as
the case may be, in the appropriate public office for real property records or
UCC Financing Statements, each such assignment of Mortgage, each such assignment
of Assignment of Leases and any other recordable documents relating to each such
Trust Mortgage Loan in favor of the Trustee that is referred to in clause
(a)(iv) of the definition of "Mortgage File" and each such UCC Financing
Statement assignment in favor of the Trustee that is referred to in clause
(a)(viii) of the definition of "Mortgage File," in each case pursuant to Section
2(d) of the related Mortgage Loan Purchase Agreement.
(e) All documents and records in the Servicing File (except draft
documents, privileged or other communications, credit underwriting, legal or
other due diligence analyses, credit committee briefs or memoranda or other
internal approval documents or data or internal worksheets, memoranda,
communications or evaluations of the Mortgage Loan Seller) in possession of the
Depositor or the Mortgage Loan Sellers that relate to the Serviced Trust
Mortgage Loans and that are not required to be a part of a Mortgage File in
accordance with the definition thereof (including any original letter of credit
that is not part of the Mortgage File because the Master Servicer or any
Sub-Servicer therefor has possession thereof), together with all Escrow Payments
and Reserve Accounts in the possession thereof, shall be delivered to the Master
Servicer or such other Person as may be directed by the Master Servicer (at the
expense of the applicable Mortgage Loan Seller) on or before the Closing Date
and shall be held by the Master Servicer on behalf of the Trustee in trust for
the benefit of the Certificateholders; provided, however, the Master Servicer
shall have no responsibility for holding documents created or maintained by the
Special Servicer hereunder and not delivered to the Master Servicer. The
applicable Mortgage Loan Seller shall pay any costs of assignment or amendment
of any letter of credit related to the Trust Mortgage Loans such Mortgage Loan
Seller sold to the Depositor required in order for the Master Servicer to draw
on such letter of credit.
Pursuant to the LaSalle Mortgage Loan Purchase Agreement, LaSalle
Bank will remit or cause to be remitted to the Certificate Administrator on or
prior to the Closing Date, the Closing Date Deposits for the Closing Date
Deposit Mortgage Loans. The Certificate Administrator shall hold the Closing
Date Deposits in the Distribution Account and shall include the Closing Date
Deposits in the Available Distribution Amount for the initial Distribution Date.
The Closing Date Deposits shall remain uninvested.
(f) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above, the Depositor shall deliver to the Custodian, the Master
Servicer and the Special Servicer on or before the Closing Date and hereby
represents and warrants that it has delivered a copy of a fully executed
counterpart of each of the Mortgage Loan Purchase Agreements, as in full force
and effect on the Closing Date.
(g) The Depositor hereby consents to the filing of any UCC Financing
Statements contemplated by this Agreement without its consent being given at the
time of such filing.
SECTION 2.02. Acceptance of the Trust Fund by Trustee.
(a) The Trustee, by its execution and delivery of this Agreement,
acknowledges receipt of the Depositor's assignment to it of the Depositor's
right, title and interest in the assets that constitute the Trust Fund, and
further acknowledges receipt by it or a Custodian on its behalf, subject to the
provisos in the definition of "Mortgage File" and the provisions of Section 2.01
and subject to the further limitations on review provided for in Section 2.02(b)
and the exceptions noted on the schedule of exceptions of (i) the Mortgage File
delivered to it for each Trust Mortgage Loan and (ii) a copy of a fully executed
counterpart of each Mortgage Loan Purchase Agreement and each Swap Agreement,
all in good faith and without notice of any adverse claim, and declares that it
or a Custodian on its behalf holds and will hold such documents and the other
documents received by it that constitute portions of the Mortgage Files, and
that it holds and will hold the Trust Mortgage Loans and other assets included
in the Trust Fund, in trust for the exclusive use and benefit of all present and
future Certificateholders. To the extent that the Mortgage File for a Trust
Mortgage Loan that is part of a Loan Combination relates to the corresponding
Non-Trust Loan, the Trustee shall also hold such Mortgage File in trust for the
use and benefit of the related Non-Trust Noteholder(s). The Trustee hereby
certifies to each of the Depositor, the Certificate Administrator, the Master
Servicer, the Special Servicer and each Mortgage Loan Seller that, without
regard to the proviso in the definition of "Mortgage File," each of the
Specially Designated Mortgage Loan Documents are in its possession. In addition,
within 90 days after the Closing Date, the Trustee or the Custodian on its
behalf will review the Mortgage Files and certify (in a certificate
substantially in the form of Exhibit C) to each of the Depositor, the Master
Servicer, the Special Servicer, each Mortgage Loan Seller (with copies to the
Controlling Class Representative), that, with respect to each Trust Mortgage
Loan listed in the Mortgage Loan Schedule, except as specifically identified in
the schedule of exceptions annexed thereto, (i) without regard to the proviso in
the definition of "Mortgage File," all documents specified in clauses (a)(i),
(a)(ii), (a)(iv)(a), (a)(v), (a)(vii) and (b)(i), and to the extent provided in
the related Mortgage File and actually known by a Responsible Officer of the
Trustee or the Custodian to be required or to the extent listed on the Mortgage
Loan checklist, if any, provided by the related Mortgage Loan Seller pursuant to
the related Mortgage Loan Purchase Agreement, clauses (a)(iii), (a)(iv)(b),
(a)(iv)(c), (a)(vi), (a)(viii) and (a)(ix) through (a)(xii) and (b) (ii) of the
definition of "Mortgage File" are in its possession, (ii) all documents
delivered or caused to be delivered with respect to a Trust Mortgage Loan by the
applicable Mortgage Loan Seller constituting the related Mortgage File have been
reviewed by it and appear regular on their face, appear to be executed and
appear to relate to such Trust Mortgage Loan, and (iii) based on such
examination and only as to the foregoing documents, the information set forth in
the Mortgage Loan Schedule for such Trust Mortgage Loan with respect to the
items specified in clauses (v) and (vi)(c) of the definition of "Mortgage Loan
Schedule" is correct. Further, with respect to the documents described in clause
(a)(viii) of the definition of Mortgage File, absent actual knowledge of a
Responsible Officer to the contrary or copies of UCC Financing Statements
delivered to the Trustee as part of the Mortgage File indicating otherwise, the
Trustee may assume, for purposes of the certification delivered in this Section
2.02(a), that the related Mortgage File should include one state level UCC
Financing Statement filing and one local UCC Financing Statement fixture filing
for each Mortgaged Property (or with respect to any Mortgage Loan that has two
or more Mortgagors, for each Mortgagor). Amendments with respect to the UCC
Financing Statements to be assigned to the Trust, assigning such UCC Financing
Statements to the Trust, will be delivered on the new national forms and in
recordable form and will be filed in the state of incorporation or organization
of the related Mortgagor as so indicated on the documents provided. If any
exceptions are noted to the certification delivered to the above-mentioned
recipients substantially in the form of Exhibit C, the Trustee shall, every 90
days after the delivery of such certification until the second anniversary of
the Closing Date, and every 180 days thereafter until the fifth anniversary of
the Closing Date, and thereafter upon request by any party hereto, any Mortgage
Loan Seller or the Plurality Subordinate Certificateholder, distribute an
updated exception report to such recipients; provided that, by delivery of each
such updated exception report, the Trustee shall be deemed to have made the
certifications provided for in Exhibit C as to each Mortgage Loan or each
applicable document (that is to be covered by a certification in the form of
Exhibit C) in respect of a Mortgage Loan that, in each case, is not identified
in such updated exception report.
(b) None of the Trustee, the Certificate Administrator, the Master
Servicer, the Special Servicer or any Custodian is under any duty or obligation
to inspect, review or examine any of the documents, instruments, certificates or
other papers relating to the Trust Mortgage Loans delivered to it to determine
that the same are valid, legal, effective, genuine, enforceable, in recordable
form, sufficient or appropriate for the represented purpose or that they are
other than what they purport to be on their face.
SECTION 2.03. Mortgage Loan Seller's Repurchase or Substitution of
Trust Mortgage Loans for Document Defects and Breaches
of Representations and Warranties.
(a) If any party hereto discovers (without implying any duty of such
Person to make any inquiry) or receives notice that any document or documents
constituting a part of a Mortgage File with respect to a Trust Mortgage Loan has
not been properly executed, is missing (beyond the time period required for its
delivery hereunder), contains information that does not conform in any material
respect with the corresponding information set forth in the Mortgage Loan
Schedule, or does not appear to be regular on its face (each, a "Document
Defect"), or discovers (without implying any duty of such Person to make any
inquiry) or receives notice of a breach of any representation or warranty
relating to any Trust Mortgage Loan set forth in Schedule I of any Mortgage Loan
Purchase Agreement (a "Breach"), the party discovering such Document Defect or
Breach shall give written notice (which notice, in respect of any obligation of
the Trustee to provide notice of a Document Defect, shall be deemed given by the
delivery of the certificate as required by Section 2.02(a)) to the applicable
Mortgage Loan Seller and the other parties hereto. The Trustee shall then
promptly deliver such notice to the Controlling Class Representative and to the
Rating Agencies of such Document Defect or Breach. Promptly upon becoming aware
of any Document Defect or Breach (including through such written notice provided
by any party hereto or the Controlling Class Representative as provided above),
if any party hereto determines that such Document Defect or Breach materially
and adversely affects the value of the affected Trust Mortgage Loan or the
interests of the Certificateholders therein, such party shall notify the Master
Servicer and, if the subject Trust Mortgage Loan is a Specially Serviced
Mortgage Loan, the Special Servicer, of such determination and promptly after
receipt of such notice, the Master Servicer or the Special Servicer, as
applicable, shall request in writing that the applicable Mortgage Loan Seller,
not later than 90 days from receipt of such written request (or, in the case of
a Document Defect or Breach relating to a Trust Mortgage Loan not being a
"qualified mortgage" within the meaning of the REMIC Provisions, not later than
90 days after any party to this Agreement discovers such Document Defect or
Breach) (i) cure such Document Defect or Breach, as the case may be, in
accordance with Section 3(c) of the related Mortgage Loan Purchase Agreement,
(ii) repurchase the affected Trust Mortgage Loan (which for purposes of this
clause (ii) shall include a Trust REO Loan) in accordance with Section 3(c) of
the related Mortgage Loan Purchase Agreement, or (iii) within two years of the
Closing Date, substitute a Qualified Substitute Mortgage Loan for such affected
Trust Mortgage Loan (which for purposes of this clause (iii) shall include a
Trust REO Loan) and pay the Master Servicer for deposit into the Collection
Account any Substitution Shortfall Amount in connection therewith in accordance
with Sections 3(c) and 3(d) of the related Mortgage Loan Purchase Agreement;
provided, however, that if such Document Defect or Breach is capable of being
cured but not within such 90 day period, such Document Defect or Breach does not
relate to the Trust Mortgage Loan not being treated as a "qualified mortgage"
within the meaning of the REMIC Provisions, and the applicable Mortgage Loan
Seller has commenced and is diligently proceeding with the cure of such Document
Defect or Breach within such 90 day period, the applicable Mortgage Loan Seller
shall have an additional 90 days to complete such cure (or, failing such cure,
to repurchase or (subject to clause (iii) above) replace the related Trust
Mortgage Loan (which for purposes of such repurchase or substitution shall
include a Trust REO Loan)); and provided, further, with respect to such
additional 90 day period the applicable Mortgage Loan Seller shall have
delivered an Officer's Certificate to the Trustee and the Certificate
Administrator setting forth the reasons such Document Defect or Breach is not
capable of being cured within the initial 90-day period and what actions the
applicable Mortgage Loan Seller is pursuing in connection with the cure thereof
and stating that the applicable Mortgage Loan Seller anticipates such Document
Defect or Breach will be cured within the additional 90-day period. In the event
of a Document Defect or Breach as to a Trust Mortgage Loan that is
cross-collateralized and cross-defaulted with one or more other Trust Mortgage
Loans (each, a "Crossed Loan" and, collectively, a "Crossed Loan Group"), and
such Document Defect or Breach does not constitute a Document Defect or Breach,
as the case may be, as to any other Crossed Loan in such Crossed Loan Group
(without regard to this paragraph) and is not cured as provided for above, then
the applicable Document Defect or Breach, as the case may be, shall be deemed to
constitute a Document Defect or Breach, as the case may be, as to any other
Crossed Loan in the Crossed Loan Group for purposes of this paragraph and the
related Mortgage Loan Seller shall be required to repurchase or substitute for
all such Crossed Loans unless (1) the weighted average Debt Service Coverage
Ratio for all the remaining related Crossed Loans for the four calendar quarters
immediately preceding such repurchase or substitution is not less than the
weighted average Debt Service Coverage Ratio for all such related Crossed Loans
including the affected Crossed Loan, for the four calendar quarters immediately
preceding such repurchase or substitution, and (2) the weighted average
Loan-to-Value Ratio for the remaining related Crossed Loans determined at the
time of repurchase or substitution based upon an Appraisal obtained by the
Special Servicer at the expense of the related Mortgage Loan Seller shall not be
greater than the weighted average Loan-to-Value Ratio for all such related
Crossed Loans, including the affected Crossed Loan determined at the time of
repurchase or substitution based upon an Appraisal obtained by the Special
Servicer at the expense of the related Mortgage Loan Seller; provided that if
such criteria is satisfied and any Crossed Loan is not so repurchased or
substituted, then such Crossed Loan shall be released from its
cross-collateralization and cross default provision so long as such Crossed Loan
(that is not the Crossed Loan directly affected by the subject Document Defect
or Breach) is held in the Trust Fund; provided, further, that the repurchase or
replacement of less than all such Crossed Loans and the release from the
cross-collateralization and cross-default provision shall be subject to the
delivery by the Mortgage Loan Seller to the Trustee and the Certificate
Administrator, at the expense of the Mortgage Loan Seller, of an Opinion of
Counsel to the effect that such release would not cause either of REMIC I or
REMIC II to fail to qualify as a REMIC under the Code or result in the
imposition of any tax on "prohibited transactions" or "contributions" after the
Startup Day under the REMIC Provisions. In the event that one or more of such
other Crossed Loans satisfy the aforementioned criteria, the related Mortgage
Loan Seller may elect either to repurchase or substitute for only the affected
Crossed Loan as to which the related Document Defect or Breach exists or to
repurchase or substitute for all of the Crossed Loans in the related Crossed
Loan Group. All documentation relating to the termination of the
cross-collateralization provisions of each Crossed Loan being repurchased or
replaced is to be prepared at the expense of the applicable Mortgage Loan Seller
and, where required, with the consent of the applicable Mortgagor. For a period
of two years from the Closing Date, so long as there remains any Mortgage File
as to which there is any uncured Document Defect and so long as the applicable
Mortgage Loan Seller shall provide the Officer's Certificate pursuant to Section
3(c) of the related Mortgage Loan Purchase Agreement, the Trustee shall on a
quarterly basis prepare and deliver electronically to the other parties an
updated exception report as to the status of such uncured Document Defects as
provided in Section 2.02(a). If the affected Trust Mortgage Loan is to be
repurchased or substituted, the Master Servicer shall designate the Collection
Account as the account to which funds in the amount of the Purchase Price or the
Substitution Shortfall Amount, as applicable, are to be wired. Any such
repurchase or substitution of a Trust Mortgage Loan shall be on a whole loan,
servicing released basis.
Pursuant to each Mortgage Loan Purchase Agreement, to the extent
that the related Mortgage Loan Seller is required to repurchase or substitute
for a Crossed Loan thereunder while the Trustee continues to hold any other
Crossed Loan(s) in the related Crossed Loan Group, the related Mortgage Loan
Seller and the Depositor have agreed that neither such party shall enforce any
remedies against the other party's Primary Collateral, but each is permitted to
exercise remedies against the Primary Collateral securing the Crossed Loan(s)
held thereby, so long as such exercise does not materially impair the ability of
the other party to exercise its remedies against the Primary Collateral securing
the Crossed Loan(s) held thereby. Notwithstanding the foregoing, each Mortgage
Loan Seller and the Depositor have agreed that if the exercise by one party
would materially impair the ability of the other party to exercise its remedies
with respect to the Primary Collateral securing the Crossed Loan(s) held by such
party, then each such party shall forbear from exercising such remedies until
the Mortgage Loan documents evidencing and securing the relevant Crossed Loans
can be modified in a manner consistent with the related Mortgage Loan Purchase
Agreement to remove the threat of material impairment as a result of the
exercise of remedies.
(b) In connection with any repurchase or substitution of one or more
Trust Mortgage Loans contemplated by this Section 2.03, upon receipt of a
Request for Release (in the form of Exhibit D-1 attached hereto) of a Servicing
Officer of the Master Servicer certifying as to the receipt of the applicable
Purchase Price(s) in the Collection Account (in the case of any such repurchase)
or the receipt of the applicable Substitution Shortfall Amount(s) in the
Collection Account and upon the delivery of the Mortgage File(s) and the
Servicing File(s) for the related Qualified Substitute Mortgage Loan(s) to the
Custodian and the Master Servicer, respectively (in the case of any such
substitution), (i) the Trustee shall execute and deliver such endorsements and
assignments as are provided to it, in each case without recourse, representation
or warranty, as shall be necessary to vest in the applicable Mortgage Loan
Seller the legal and beneficial ownership of each repurchased Trust Mortgage
Loan or deleted Trust Mortgage Loan, as applicable, being released pursuant to
this Section 2.03, (ii) the Trustee, the Custodian, the Master Servicer, and the
Special Servicer shall each tender to the applicable Mortgage Loan Seller, upon
delivery to each of them of a receipt executed by the applicable Mortgage Loan
Seller, all portions of the Mortgage File and other documents pertaining to each
such Mortgage Loan possessed by it and (iii) the Master Servicer and the Special
Servicer shall release to the applicable Mortgage Loan Seller any Escrow
Payments and Reserve Funds held by it in respect of such repurchased or deleted
Trust Mortgage Loan; provided that such tender by the Trustee or the Custodian
shall be conditioned upon its receipt from the Master Servicer or the Special
Servicer of a Request for Release. Thereafter, the Trustee, the Certificate
Administrator, the Custodian, the Master Servicer and the Special Servicer shall
have no further responsibility with regard to the related repurchased Trust
Mortgage Loan(s) or deleted Trust Mortgage Loan(s), as applicable, and the
related Mortgage File(s) and Servicing File(s). The Master Servicer shall, and
is hereby authorized and empowered by the Trustee to, prepare, execute and
deliver in its own name, on behalf of the Certificateholders and the Trustee or
any of them, the endorsements and assignments contemplated by this Section 2.03,
and the Trustee shall execute any powers of attorney that are prepared and
delivered to the Trustee by the Master Servicer to permit the Master Servicer to
do so. The Master Servicer shall indemnify the Trustee for any reasonable costs,
fees, liabilities and expenses incurred by the Trustee in connection with the
negligent or willful misuse by the Master Servicer of such powers of attorney.
At the time a substitution is made, the applicable Mortgage Loan Purchase
Agreement will provide that the applicable Mortgage Loan Seller shall be
required to deliver the related Mortgage File to the Trustee and certify that
the substitute Trust Mortgage Loan is a Qualified Substitute Mortgage Loan.
(c) No substitution of a Qualified Substitute Mortgage Loan or Loans
may be made in any calendar month after the Determination Date for such month.
Periodic Payments due with respect to any Qualified Substitute Mortgage Loan
after the related date of substitution shall be part of REMIC I, as applicable.
No substitution of a Qualified Substitute Mortgage Loan for a deleted Trust
Mortgage Loan shall be permitted under this Agreement if after such
substitution, the aggregate of the Stated Principal Balances of all Qualified
Substitute Mortgage Loans which have been substituted for deleted Trust Mortgage
Loans exceeds 10% of the aggregate Cut-off Date Balance of all the Trust
Mortgage Loans. Periodic Payments due with respect to any Qualified Substitute
Mortgage Loan on or prior to the related date of substitution shall not be part
of the Trust Fund or REMIC I and will (to the extent received by the Master
Servicer) be remitted by the Master Servicer to the applicable Mortgage Loan
Seller promptly following receipt.
(d) The Mortgage Loan Purchase Agreements and Section 2.03(a) of
this Agreement provide the sole remedies available to the Certificateholders, or
the Trustee on behalf of the Certificateholders, respecting any Document Defect
or Breach with respect to the Trust Mortgage Loans purchased by the Depositor
thereunder.
(e) The Trustee with the cooperation of the Special Servicer (in the
case of Specially Serviced Mortgage Loans) shall, for the benefit of the
Certificateholders, enforce the obligations of each Mortgage Loan Seller under
Section 3 of the related Mortgage Loan Purchase Agreement.
Notwithstanding anything contained herein or the related Mortgage
Loan Purchase Agreement, no delay in the discovery of a Defect or Breach or
delay on the part of any party to this Agreement in providing notice of such
Defect or Breach shall relieve the related Mortgage Loan Seller of its
obligations to repurchase or substitute if it is otherwise required to do so
under the related Mortgage Loan Purchase Agreement.
If the applicable Mortgage Loan Seller incurs any expense in
connection with the curing of a Document Defect or a Breach which also
constitutes a default under the related Trust Mortgage Loan and is reimbursable
thereunder, such Mortgage Loan Seller shall have a right, and shall be
subrogated to the rights of the Trustee and the Trust Fund, as successor to the
mortgagee, to recover the amount of such expenses from the related Mortgagor;
provided, however, that such Trust Mortgage Loan Seller's rights pursuant to
this paragraph shall be junior, subject and subordinate to the rights of the
Master Servicer, the Special Servicer, the Trustee, the Certificate
Administrator and the Trust Fund to recover amounts owed by the related
Mortgagor under the terms of such Trust Mortgage Loan, including the rights to
recover unreimbursed Advances, accrued and unpaid interest on Advances at the
Reimbursement Rate and unpaid or unreimbursed expenses of the Trustee, the
Certificate Administrator, the Trust Fund, the Master Servicer or the Special
Servicer allocable to such Trust Mortgage Loan. The Master Servicer or, with
respect to a Specially Serviced Mortgage Loan, the Special Servicer, at such
Mortgage Loan Seller's expense, shall use reasonable efforts to recover such
expenses for such Mortgage Loan Seller to the extent consistent with the
Servicing Standard, but taking into account the subordinate nature of the
reimbursement to the Mortgage Loan Seller; provided, however, that the Master
Servicer or, with respect to a Specially Serviced Mortgage Loan, the Special
Servicer determines in the exercise of its sole discretion consistent with the
Servicing Standard that such actions by it will not impair the Master Servicer's
and/or the Special Servicer's collection or recovery of principal, interest and
other sums due with respect to the related Trust Mortgage Loan which would
otherwise be payable to the Master Servicer, the Special Servicer, the Trustee,
the Certificate Administrator, and the Certificateholders pursuant to the terms
of this Agreement.
SECTION 2.04. Representations and Warranties of Depositor.
(a) The Depositor hereby represents and warrants to the Trustee, for
its own benefit and the benefit of the Certificateholders, and to the
Certificate Administrator, the Master Servicer and the Special Servicer, as of
the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Depositor,
and the performance and compliance with the terms of this Agreement by the
Depositor, will not violate the Depositor's certificate of incorporation
or bylaws or constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result in the
breach of, any material agreement or other instrument to which it is a
party or which is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Depositor, enforceable against the Depositor
in accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Depositor's good faith reasonable
judgment, is likely to affect materially and adversely either the ability
of the Depositor to perform its obligations under this Agreement or the
financial condition of the Depositor.
(vi) The transfer of the Trust Mortgage Loans to the Trustee as
contemplated herein requires no regulatory approval, other than any such
approvals as have been obtained, and is not subject to any bulk transfer
or similar law in effect in any applicable jurisdiction.
(vii) No litigation is pending or, to the best of the Depositor's
knowledge, threatened against the Depositor that, if determined adversely
to the Depositor, would prohibit the Depositor from entering into this
Agreement or that, in the Depositor's good faith reasonable judgment, is
likely to materially and adversely affect either the ability of the
Depositor to perform its obligations under this Agreement or the financial
condition of the Depositor.
(viii) Immediately prior to the transfer of the Trust Mortgage Loans
to the Trust Fund pursuant to Section 2.01(a) of this Agreement (and
assuming that the Mortgage Loan Sellers transferred to the Depositor good
and marketable title to their respective Mortgage Loans free and clear of
all liens, claims, encumbrances and other interests), (A) the Depositor
had good and marketable title to, and was the sole owner and holder of,
each Trust Mortgage Loan; and (B) the Depositor has full right and
authority to sell, assign and transfer the Trust Mortgage Loans and all
servicing rights pertaining thereto.
(ix) The Depositor is transferring the Trust Mortgage Loans to the
Trust Fund free and clear of any liens, pledges, charges and security
interests created by or through the Depositor.
(b) The representations and warranties of the Depositor set forth in
Section 2.04(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust Fund remains in existence. Upon discovery by any party
hereto of any breach of any of the foregoing representations and warranties, the
party discovering such breach shall give prompt written notice thereof to the
other parties.
SECTION 2.05. Acceptance of REMIC I by Trustee.
The Trustee acknowledges the assignment to it of the Trust Mortgage
Loans and the other property comprising REMIC I, the Additional Interest and the
other property comprising Grantor Trust Z, and declares that it holds and will
hold the same in trust for the exclusive use and benefit of: in the case of
REMIC I, all present and future Holders of the Class R-I Certificates and REMIC
II as the holder of the REMIC I Regular Interests; in the case of Grantor Trust
Z, all present and future holders of the Class Z Certificates.
SECTION 2.06. Execution, Authentication and Delivery of Class R-I
Certificates.
The Certificate Registrar, pursuant to the written request of the
Depositor executed by an officer of the Depositor, has executed, and the
Authenticating Agent has authenticated and delivered to or upon the order of the
Depositor, in exchange for the assets included in REMIC I, the Class R-I
Certificates in authorized denominations.
SECTION 2.07. Conveyance of REMIC I Regular Interests; Acceptance of
REMIC II by Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all the right, title and interest of the Depositor in and to the REMIC I Regular
Interests to the Trustee for the benefit of the respective Holders of the REMIC
II Certificates, Grantor Trust A-3FL and Grantor Trust A-4FC. The Trustee
acknowledges the assignment to it of the REMIC I Regular Interests and declares
that it holds and will hold the same in trust for the exclusive use and benefit
of all present and future Holders of the REMIC II Certificates, Grantor Trust
A-3FL and Grantor Trust A-4FC.
SECTION 2.08. Execution, Authentication and Delivery of REMIC II
Certificates.
Concurrently with the assignment to the Trustee of the REMIC I
Regular Interests and in exchange therefor, the Class A-3FL REMIC II Regular
Interest and the Class A-4FC REMIC II Regular Interest have been issued, and
pursuant to the written request of the Depositor, executed by an officer of the
Depositor, the Certificate Registrar, has executed, and the Authenticating
Agent, has authenticated and delivered to or upon the order of the Depositor,
the REMIC II Certificates in authorized denominations, evidencing, together with
the Class A-3FL REMIC II Regular Interest and the Class A-4FC REMIC II Regular
Interest, the entire beneficial ownership of REMIC II. The rights of the holders
of the respective Classes of REMIC II Certificates, Grantor Trust A-3FL as
holder of the Class A-3FL REMIC II Regular Interest and Grantor Trust A-4FC as
holder of the Class A-4FC REMIC II Regular Interest to receive distributions
from the proceeds of REMIC II in respect of their REMIC II Certificates, the
Class A-3FL REMIC II Regular Interest or the Class A-4FC REMIC II Regular
Interest, as the case may be, and all ownership interests evidenced or
constituted by the respective Classes of REMIC II Certificates, the Class A-3FL
REMIC II Regular Interest and the Class A-4FC REMIC II Regular Interest in such
distributions, shall be as set forth in this Agreement.
SECTION 2.09. Conveyance of Class A-3FL REMIC II Regular Interest
and Class A-4FC REMIC II Regular Interest; Acceptance
of Grantor Trust A-3FL and Grantor Trust A-4FC by
Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all the right, title and interest of the Depositor in and to the Class A-3FL
REMIC II Regular Interest and the Class A-4FC REMIC II Regular Interest to the
Trustee for the benefit of the Holders of the Class A-3FL Certificates and the
Holders of the Class A-4FC Certificates, respectively. The Trustee acknowledges
the assignment to it of the Class A-3FL REMIC II Regular Interest and the Class
A-4FC REMIC II Regular Interest and declares that it holds and will hold the
same in trust for the exclusive use and benefit of all present and future
Holders of the Class A-3FL Certificates and Holders of the Class A-4FC
Certificates, respectively.
SECTION 2.10. Execution, Authentication and Delivery of Class Z,
Class A-3FL and Class 4-FC Certificates.
Concurrently with the assignment to it of (i) the Additional
Interest and the other assets of Grantor Trust Z, (ii) the Class A-3FL REMIC II
Regular Interest and the other assets of Grantor Trust A-3FL; and (iii) the
Class A-4FC REMIC II Regular Interest and the other assets of Grantor Trust
A-4FC, and in exchange therefor, the Certificate Administrator, pursuant to the
written request of the Depositor executed by an officer of the Depositor, has
executed, as Certificate Registrar, authenticated, as Authenticating Agent, and
delivered to or upon the order of the Depositor, the Class Z Certificates, the
Class A-3FL Certificates and the Class A-4FC Certificates.
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans.
(a) Each of the Master Servicer and the Special Servicer shall
service and administer the Serviced Trust Mortgage Loans (and, in the case of
the Special Servicer, any related REO Properties) that each is obligated to
service and administer pursuant to this Agreement on behalf of the Trustee, for
the benefit of the Certificateholders (or, in the case of any Loan Combination,
for the benefit of the Certificateholders and the related Non-Trust
Noteholder(s)) in accordance with any and all applicable laws, the terms of this
Agreement, the terms of the respective Mortgage Loans and, in the case of a Loan
Combination, the terms of the related Loan Combination Intercreditor Agreement
(which, in the event of any conflict with this Agreement, shall control), to the
extent consistent with the foregoing, in accordance with the Servicing Standard.
Without limiting the foregoing, and subject to Section 3.21, (i) the
Master Servicer shall service and administer all Serviced Mortgage Loans that
are not Specially Serviced Mortgage Loans, and (ii) the Special Servicer shall
service and administer each Specially Serviced Mortgage Loan and REO Property
and shall render such services with respect to all Mortgage Loans and REO
Properties as are specifically provided for herein; provided that the Master
Servicer shall continue to receive payments, and prepare, or cause to be
prepared, all reports required hereunder, except for the reports specified
herein, as prepared by the Special Servicer with respect to the Specially
Serviced Mortgage Loans, as if no Servicing Transfer Event had occurred and with
respect to the REO Properties (and the related REO Loans) as if no REO
Acquisition had occurred, and to render such incidental services with respect to
the Specially Serviced Mortgage Loans and REO Properties as are specifically
provided for herein; provided, further, that the Master Servicer shall not be
liable for its failure to comply with such duties insofar as such failure
results from a failure by the Special Servicer to provide sufficient information
to the Master Servicer to comply with such duties or failure by the Special
Servicer to otherwise comply with its obligations hereunder. All references
herein to the respective duties of the Master Servicer and the Special Servicer,
and to the areas in which they may exercise discretion, shall be subject to
Section 3.21.
(b) Subject to Section 3.01(a), Section 6.11 and Section 6.12, the
Master Servicer and the Special Servicer each shall have full power and
authority, acting alone (or, pursuant to Section 3.22, through one or more
Sub-Servicers), to do or cause to be done any and all things in connection with
such servicing and administration which it may deem necessary or desirable.
Without limiting the generality of the foregoing, each of the Master Servicer
and the Special Servicer, in its own name, with respect to each of the Serviced
Mortgage Loans it is obligated to service hereunder, is hereby authorized and
empowered by the Trustee and, pursuant to each Loan Combination Intercreditor
Agreement, by the related Non-Trust Noteholder(s), to execute and deliver, on
behalf of the Certificateholders, the Trustee and each such Non-Trust
Noteholder, (i) any and all financing statements, continuation statements and
other documents or instruments necessary to maintain the lien created by any
Mortgage or other security document in the related Mortgage File on the related
Mortgaged Property and related collateral; (ii) in accordance with the Servicing
Standard and subject to Section 3.20, Section 6.11 and Section 6.12, any and all
modifications, waivers, amendments or consents to or with respect to any
documents contained in the related Mortgage File; (iii) any and all instruments
of satisfaction or cancellation, or of partial or full release, discharge, or
assignment, and all other comparable instruments; and (iv) pledge agreements and
other defeasance documents in connection with a defeasance contemplated pursuant
to Section 3.20(i). Subject to Section 3.10, the Trustee shall, at the written
request of the Master Servicer or the Special Servicer, promptly execute any
limited powers of attorney and other documents furnished by the Master Servicer
or the Special Servicer that are necessary or appropriate to enable them to
carry out their servicing and administrative duties hereunder; provided,
however, that the Trustee shall not be held liable for any misuse of any such
power of attorney by the Master Servicer or the Special Servicer.
Notwithstanding anything contained herein to the contrary, neither the Master
Servicer nor the Special Servicer shall without the Trustee's written consent:
(i) initiate any action, suit or proceeding solely under the Trustee's name (or,
in the case of a Non-Trust Loan, solely under the related Non-Trust Noteholder's
name) without indicating the Master Servicer's or Special Servicer's as
applicable, representative capacity; or (ii) take any action with the intent to
cause, and that actually does cause, the Trustee to be registered to do business
in any state.
(c) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee under this Agreement is intended by the parties to be
that of an independent contractor and not that of a joint venture or partner or
agent. The Master Servicer shall not be responsible for the actions of or
failure to act by the Special Servicer and the Special Servicer shall not be
responsible for the actions of or the failure to act by the Master Servicer.
(d) Notwithstanding anything herein to the contrary, in no event
shall the Master Servicer or the Trustee make a Servicing Advance with respect
to any Non-Trust Loan to the extent the related Trust Mortgage Loan has been
paid in full or is no longer included in the Trust Fund.
(e) Neither the Master Servicer nor the Special Servicer shall have
any liability for the failure of any Mortgage Loan Seller to perform its
obligations under the related Mortgage Loan Purchase Agreement.
(f) The parties hereto acknowledge that each Loan Combination is
subject to the terms and conditions of the related Loan Combination
Intercreditor Agreement. The parties hereto further recognize the respective
rights and obligations of the related Non-Trust Noteholder(s) under the related
Loan Combination Intercreditor Agreement, including with respect to (i) the
allocation of collections on or in respect of the applicable Loan Combination,
and the making of payments, to such Non-Trust Noteholder(s) in accordance with
the related Loan Combination Intercreditor Agreement, (ii) the allocation of
expenses and/or losses relating to the subject Loan Combination to such
Non-Trust Noteholder(s) in accordance with the related Loan Combination
Intercreditor Agreement, and (iii) the right of a B-Noteholder or its designee
(in the case of an A/B Loan Combination) or the Glendale Galleria Pari Passu
Noteholder or a Glendale Galleria Subordinate Noteholder (in the case of the
Glendale Galleria Loan Combination) to purchase the related Trust Mortgage Loan
in accordance with the related Loan Combination Intercreditor Agreement.
(g) With respect to any Loan Combination that includes a Serviced
Trust Mortgage Loan, in the event that either the related Trust Mortgage Loan or
the related Loan Combination REO Property (or any interest therein) is no longer
an asset of the Trust Fund and, except as contemplated in the second paragraph
of this Section 3.01(g), in accordance with the related Loan Combination
Intercreditor Agreement, the servicing and administration of such Loan
Combination and any related Loan Combination REO Property are to be governed by
a separate servicing agreement and not by this Agreement, then (either (i) with
the consent or at the request of the holders of each Mortgage Loan comprising
such Loan Combination or (ii) if expressly provided for in the related Loan
Combination Intercreditor Agreement) the Master Servicer and, if such Loan
Combination is then being specially serviced hereunder or the related Loan
Combination Mortgaged Property has become a Loan Combination REO Property, the
Special Servicer, shall continue to act in such capacities under such separate
servicing agreement; provided that such separate servicing agreement shall be
reasonably acceptable to the Master Servicer and/or the Special Servicer, as the
case may be, and shall contain servicing and administration, limitation of
liability, indemnification and servicing compensation provisions substantially
similar to the corresponding provisions of this Agreement, except for the fact
that such Loan Combination and the related Loan Combination Mortgaged Property
shall be the sole assets serviced and administered thereunder and the sole
source of funds thereunder; and provided that neither the Master Servicer nor
the Special Servicer nor the Trustee shall be required to make any Advances
thereunder.
Further, with respect to any Loan Combination that includes a
Serviced Trust Mortgage Loan, if at any time neither the related Trust Mortgage
Loan nor any related Loan Combination REO Property (or any interest therein) is
an asset of the Trust Fund, and if a separate servicing agreement with respect
to such Loan Combination or any related Loan Combination REO Property, as
applicable, has not been entered into as contemplated by the related Loan
Combination Intercreditor Agreement and the prior paragraph (for whatever
reason, including the failure to obtain any rating agency confirmation required
in connection therewith pursuant to the related Loan Combination Intercreditor
Agreement), and notwithstanding that neither the related Trust Mortgage Loan nor
any related Loan Combination REO Property (or any interest therein) is an asset
of the Trust Fund, then, unless directed otherwise by the then current holders
of the Mortgage Notes comprising such Loan Combination, the Master Servicer and,
if applicable, the Special Servicer shall continue to service and administer
such Loan Combination and/or any related Loan Combination REO Property, for the
benefit of the respective holders of such Loan Combination, under this Agreement
as if such Loan Combination or any related Loan Combination REO Property were
the sole assets subject hereto.
SECTION 3.02. Collection of Mortgage Loan Payments.
(a) Each of the Master Servicer or the Special Servicer shall
undertake efforts consistent with the Servicing Standard to collect all payments
required under the terms and provisions of the Serviced Mortgage Loans it is
obligated to service hereunder and shall, to the extent such procedures shall be
consistent with this Agreement, follow such collection procedures in accordance
with the Servicing Standard; provided that with respect to the Serviced Mortgage
Loans that have Anticipated Repayment Dates, so long as the related Mortgagor is
otherwise in compliance with each provision of the related Mortgage Loan
documents, the Master Servicer and Special Servicer (including the Special
Servicer in its capacity as a Certificateholder), shall not take any enforcement
action with respect to the failure of the related Mortgagor to make any payment
of Additional Interest or principal in excess of the principal component of the
constant Periodic Payment, other than requests for collection, until the
maturity date of the related Mortgage Loan; provided further, that the Master
Servicer or Special Servicer, as the case may be, may take action to enforce the
Trust Fund's right to apply excess cash flow to principal in accordance with the
terms of the Mortgage Loan documents. The Master Servicer may, in its
discretion, with respect to Serviced Mortgage Loans that have Anticipated
Repayment Dates, waive any or all of the Additional Interest accrued on any such
Serviced Mortgage Loan if the Mortgagor is ready and willing to pay all other
amounts due under such Serviced Mortgage Loan in full, including the Stated
Principal Balance, provided that it acts in accordance with the Servicing
Standard and it has received the consent of the Special Servicer and the
Controlling Class Representative (which consent will be deemed granted if not
denied in writing within 10 Business Days after the Special Servicer's receipt
of the Master Servicer's request for such consent), and neither the Master
Servicer nor the Special Servicer will have any liability to the Trust Fund, the
Certificateholders or any other person for any determination that is made in
accordance with the Servicing Standard. The Master Servicer, with regard to a
Serviced Mortgage Loan that is not a Specially Serviced Mortgage Loan, may waive
any Default Charges in connection with any payment on such Mortgage Loan two (2)
times during any period of 12 consecutive months and no more than four (4) times
following the Closing Date, unless such Default Charges would otherwise be
payable to the Master Servicer pursuant to Section 3.26. No such additional
waiver shall be permitted without the consent of the Controlling Class
Representative, which consent shall be deemed granted if not denied in writing
(which may be sent via facsimile transmission or electronic mail) within five
Business Days of such request. Notwithstanding any of the foregoing, in the case
of the Xxxxxxx Trust Mortgage Loans identified on Exhibit V, the Master Servicer
and the Special Servicer shall not take any enforcement action with respect to
the failure of a Mortgagor to make any payment of a late payment charge or
demand payment of a late payment charge from a Mortgagor, in each case prior the
expiration of the grace period for Periodic Payments, if any, set forth in the
related Mortgage Loan documents.
(b) All amounts collected in respect of any Serviced Mortgage Loan
in the form of payments from Mortgagors, Liquidation Proceeds (insofar as such
Liquidation Proceeds are of the nature described in clauses (i) through (iii) of
the definition thereof) or Insurance Proceeds shall be applied to either amounts
due and owing under the related Mortgage Note, loan agreement (if any) and
Mortgage (including, without limitation, for principal and accrued and unpaid
interest) in accordance with the express provisions of the related Mortgage
Note, loan agreement (if any) and Mortgage (and, with respect to any Loan
Combination, the related Loan Combination Intercreditor Agreement and the
documents evidencing and securing the related Non-Trust Loan(s)) except as
otherwise provided herein or, if required pursuant to the express provisions of
the related Mortgage or, as determined by the Master Servicer or Special
Servicer in accordance with the Servicing Standard, to the repair or restoration
of the related Mortgaged Property, and, in the absence of such express
provisions, shall be applied (after reimbursement or payment, first, to the
Trustee and the Certificate Administrator, pro rata, and second, to the Master
Servicer or Special Servicer, as applicable, for any unpaid Master Servicing
Fee, Special Servicing Fee, Principal Recovery Fee, liquidation expenses and
related Additional Trust Fund Expenses) for purposes of this Agreement: first,
in connection with Liquidation Proceeds or Insurance Proceeds as a recovery of
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts that were paid
from principal collections on such Serviced Mortgage Loan (including
Unliquidated Advances) and resulted in principal distributed to the
Certificateholders being reduced; second, as a recovery of any related and
unreimbursed Advances plus unreimbursed interest accrued thereon; third, as a
recovery of accrued and unpaid interest at the related Mortgage Rate (net of the
Master Servicing Fee Rate) on such Serviced Mortgage Loan, to the extent such
amounts have not been previously advanced, and exclusive of any portion thereof
that constitutes Additional Interest; fourth, as a recovery of principal of such
Serviced Mortgage Loan then due and owing, to the extent such amounts have not
been previously advanced, including, without limitation, by reason of
acceleration of such Serviced Mortgage Loan following a default thereunder;
fifth, as a recovery of Default Charges; sixth, in accordance with the normal
servicing practices of the Master Servicer, as a recovery of any other amounts
then due and owing under such Serviced Mortgage Loan (other than Additional
Interest), including, without limitation, Prepayment Premiums and Yield
Maintenance Charges; seventh, as a recovery of any remaining principal of such
Serviced Mortgage Loan to the extent of its entire remaining unpaid principal
balance; and eighth, with respect to any ARD Loan after its Anticipated
Repayment Date, as a recovery of any unpaid Additional Interest. All amounts
collected on any Trust Mortgage Loan in the form of Liquidation Proceeds of the
nature described in clauses (iv) through (ix) of the definition thereof shall be
deemed to be applied (after reimbursement or payment first to the Trustee and
the Certificate Administrator, pro rata, and second to the Master Servicer or
Special Servicer, as applicable, for any unpaid Master Servicing Fee, Special
Servicing Fee, Principal Recovery Fee, liquidation expenses and related
Additional Trust Fund Expenses): first, as a recovery of any related and
unreimbursed Advances plus interest accrued thereon; second, as a recovery of
accrued and unpaid interest at the related Mortgage Rate (net of the Master
Servicing Fee Rate) on such Serviced Mortgage Loan to but not including the Due
Date in the Collection Period of receipt, to the extent such amounts have not
been previously advanced, and exclusive of any portion thereof that constitutes
Additional Interest; third, as a recovery of principal, to the extent such
amounts have not been previously advanced, of such Serviced Mortgage Loan to the
extent of its entire unpaid principal balance; and fourth, with respect to any
ARD Loan after its Anticipated Repayment Date, as a recovery of any unpaid
Additional Interest. Amounts collected on any REO Loan shall be deemed to be
applied in accordance with the definition thereof. The provisions of this
paragraph with respect to the application of amounts collected on any Serviced
Mortgage Loan shall not alter in any way the right of the Master Servicer, the
Special Servicer or any other Person to receive payments from the Collection
Account as set forth in Section 3.05(a) from amounts so applied.
Notwithstanding the foregoing paragraph, all amounts received with
respect to any Loan Combination shall be applied to amounts due and owing under
the related Trust Mortgage Loan and the related Non-Trust Loan(s) (including for
principal and accrued and unpaid interest) in accordance with the express
provisions of the related Mortgage Notes, the related Mortgage, the related loan
agreement, if any, and the related Loan Combination Intercreditor Agreement.
Notwithstanding the second preceding paragraph, all amounts received
with respect to the Glendale Galleria Trust Mortgage Loan or any related Trust
REO Loan with respect thereto shall be allocated among interest, principal,
Default Charges, Prepayment Premiums and Yield Maintenance Charges in accordance
with the terms of any Distribution Date statement or servicer remittance report
received from the MLMT Series 2005-CKI1 Applicable Servicer with respect to the
Glendale Galleria Trust Mortgage Loan or any successor Trust REO Loan with
respect thereto and, in the absence of any such statement or report, in
accordance with the Glendale Galleria Intercreditor Agreement.
(c) To the extent consistent with the terms of the related Mortgage
Loan and applicable law, the Master Servicer shall apply all Insurance Proceeds
and condemnation proceeds it receives on a day other than the Due Date to
amounts due and owing under the related Mortgage Loan as if such Insurance
Proceeds and condemnation proceeds were received on the Due Date immediately
succeeding the month in which such Insurance Proceeds and condemnation proceeds
were received.
(d) In the event that the Master Servicer or Special Servicer
receives Additional Interest in any Collection Period, or receives notice from
the related Mortgagor that the Master Servicer or Special Servicer will be
receiving Additional Interest in any Collection Period, the Master Servicer or
Special Servicer, as applicable, will, to the extent not included in the related
CMSA Loan Periodic Update File, promptly notify the Certificate Administrator.
Subject to the provisions of Section 3.02(a) hereof, none of the Master
Servicer, the Trustee, the Certificate Administrator, or the Special Servicer
shall be responsible for any such Additional Interest not collected after notice
from the related Mortgagor.
(e) With respect to any Mortgage Loan in connection with which the
Mortgagor was required to escrow funds or to post a letter of credit related to
obtaining certain performance objectives described in the applicable Mortgage
Loan documents, the Master Servicer, to the extent the Mortgage Loan documents
provide for any discretion, with respect to non-Specially Serviced Mortgage
Loans, or the Special Servicer, with respect to Specially Serviced Mortgage
Loans shall, to the extent consistent with the Servicing Standard, hold such
escrows, letters of credit and proceeds thereof as additional collateral and not
apply such items to reduce the principal balance of such Mortgage Loan unless
otherwise required to do so pursuant to the applicable Mortgage Loan documents,
applicable law or the Servicing Standard.
(f) Promptly following the Closing Date, the Certificate
Administrator shall send written notice, substantially in the form of Exhibit U
hereto, to the MLMT Series 2005-CKI1 Master Servicer, stating that, as of the
Closing Date, the Trustee is the holder of the Glendale Galleria Trust Mortgage
Loan and directing the MLMT Series 2005-CKI1 Master Servicer to remit to the
Master Servicer all amounts payable to, and to forward, deliver or otherwise
make available 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 Glendale Galleria Trust Mortgage
Loan under the Glendale Galleria Intercreditor Agreement and the MLMT Series
2005-CKI1 Pooling and Servicing Agreement. The Master Servicer shall, within two
Business Days of receipt thereof, deposit into the Collection Account all
amounts received by it from the MLMT Series 2005-CKI1 Master Servicer or any
other party under the MLMT Series 2005-CKI1 Pooling and Servicing Agreement with
respect to the Glendale Galleria Trust Mortgage Loan, or the Glendale Galleria
Mortgaged Property or any Glendale Galleria REO Property. In the event the
Master Servicer fails to so receive any amounts due to the Trust Fund as holder
of the Glendale Galleria Trust Mortgage Loan under the Glendale Galleria
Intercreditor Agreement and the MLMT Series 2005-CKI1 Pooling and Servicing
Agreement by the Determination Date occurring in such calendar month, the Master
Servicer shall notify the MLMT Series 2005-CKI1 Master Servicer, the MLMT Series
2005-CKI1 Trustee, the Trustee and the Certificate Administrator that such
amounts due with respect to the Glendale Galleria Trust Mortgage Loan have not
been received (specifying the amount of such deficiency).
SECTION 3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts.
(a) The Master Servicer shall, as to all Serviced Mortgage Loans
establish and maintain one or more accounts (the "Servicing Accounts"), into
which all Escrow Payments shall be deposited and retained, and shall administer
such accounts in accordance with the terms of the Mortgage Loan documents;
provided that, in the case of a Loan Combination, if the related Servicing
Account includes funds with respect to any other Serviced Mortgage Loan, then
the Master Servicer shall maintain a separate sub-account of such Servicing
Account that relates solely to such Loan Combination. Each Servicing Account
with respect to a Serviced Mortgage Loan shall be an Eligible Account unless not
permitted by the terms of the applicable Mortgage Loan documents. Withdrawals of
amounts so collected from a Servicing Account may be made (to the extent of
amounts on deposit therein in respect of the related Serviced Mortgage Loan or,
in the case of clauses (iv) and (v) below, to the extent of interest or other
income earned on such amounts) only for the following purposes: (i) consistent
with the related Mortgage Loan documents, to effect the payment of real estate
taxes, assessments, insurance premiums (including premiums on any environmental
insurance policy), ground rents (if applicable) and comparable items in respect
of the respective Mortgaged Properties; (ii) insofar as the particular Escrow
Payment represents a late payment that was intended to cover an item described
in the immediately preceding clause (i) for which a Servicing Advance was made,
to reimburse the Master Servicer, the Special Servicer or the Trustee, as
applicable, for any such Servicing Advance (provided that any interest thereon
may only be withdrawn from the Collection Account); (iii) to refund to
Mortgagors any sums as may be determined to be overages; (iv) to pay interest,
if required by law or the related Mortgage Loan documents and as described
below, to Mortgagors on balances in the respective Servicing Accounts; (v) to
pay the Master Servicer interest and investment income on balances in the
Servicing Accounts as described in Section 3.06(b), if and to the extent not
required by law or the terms of the related Mortgage Loan documents to be paid
to the Mortgagor; (vi) during an event of default under the related Serviced
Mortgage Loan, for any other purpose permitted by the related Mortgage Loan
documents, applicable law and the Servicing Standard; (vii) to withdraw amounts
deposited in error; (viii) to clear and terminate the Servicing Accounts at the
termination of this Agreement in accordance with Section 9.01; or (ix) only as,
when and to the extent permitted under the Mortgage Loan documents, to effect
payment of accrued and unpaid late charges, default interest and other
reasonable fees. To the extent permitted by law or the applicable Mortgage Loan
documents, funds in the Servicing Accounts may be invested only in Permitted
Investments in accordance with the provisions of Section 3.06 and in accordance
with the terms of the related Mortgage Loan documents. The Master Servicer shall
pay or cause to be paid to the Mortgagors interest, if any, earned on the
investment of funds in the related Servicing Accounts maintained thereby, if
required by law or the terms of the related Serviced Mortgage Loan. If the
Master Servicer shall deposit in a Servicing Account any amount not required to
be deposited therein, it may at any time withdraw such amount from such
Servicing Account, any provision herein to the contrary notwithstanding. The
Servicing Accounts shall not be considered part of the segregated pool of assets
constituting, REMIC I, REMIC II, Grantor Trust A-3FL, Grantor Trust A-4FC or
Grantor Trust Z.
(b) The Master Servicer, with respect to Serviced Mortgage Loans
that are not Specially Serviced Mortgage Loans, or the Special Servicer with
respect to Specially Serviced Mortgage Loans and Serviced REO Loans, shall (i)
maintain accurate records with respect to the related Mortgaged Property
reflecting the status of real estate taxes, assessments and other similar items
that are or may become a lien thereon and the status of insurance premiums and
any ground rents payable in respect thereof and (ii) use reasonable efforts to
obtain, from time to time, all bills for (or otherwise confirm) the payment of
such items (including renewal premiums) and, if the subject Serviced Mortgage
Loan required the related Mortgagor to escrow for such items, shall effect
payment thereof prior to the applicable penalty or termination date and, in any
event, prior to the institution of foreclosure or similar proceedings with
respect to the related Mortgaged Property for nonpayment of such items. For
purposes of effecting any such payment for which it is responsible, the Master
Servicer shall apply Escrow Payments (at the direction of the Special Servicer
for Specially Serviced Mortgage Loans and Serviced REO Loans) as allowed under
the terms of the related Serviced Mortgage Loan or, if such Serviced Mortgage
Loan does not require the related Mortgagor to escrow for the payment of real
estate taxes, assessments, insurance premiums, ground rents (if applicable) and
similar items, the Master Servicer shall, as to all Serviced Mortgage Loans, use
efforts consistent with the Servicing Standard to cause the Mortgagor to comply
with the requirement of the related Mortgage that the Mortgagor make payments in
respect of such items at the time they first become due, and, in any event,
prior to the institution of foreclosure or similar proceedings with respect to
the related Mortgaged Property for nonpayment of such items.
(c) The Master Servicer shall, as to all Serviced Mortgage Loans,
make a Servicing Advance with respect to the related Mortgaged Property in an
amount equal to all such funds as are necessary for the purpose of effecting the
payment of the costs and expenses described in the definition of "Servicing
Advances," provided that the Master Servicer shall not make any Servicing
Advance prior to the penalty date or cancellation date, as applicable, if the
Master Servicer reasonably anticipates in accordance with the Servicing Standard
that the Mortgagor will pay such amount on or before the penalty date or
cancellation date, and provided, further, that the Master Servicer shall not be
obligated to make any Servicing Advance that would, if made, constitute a
Nonrecoverable Servicing Advance. All such Servicing Advances shall be
reimbursable in the first instance from related collections from the Mortgagors,
and in the case of REO Properties, from the operating revenues related thereto,
and further as provided in Section 3.05(a) and/or Section 3.05(e). No costs
incurred by the Master Servicer in effecting the payment of real estate taxes,
assessments and, if applicable, ground rents on or in respect of such Mortgaged
Properties shall, for purposes of this Agreement, including, without limitation,
the Certificate Administrator's calculation of monthly distributions to
Certificateholders, be added to the unpaid Stated Principal Balances of the
related Serviced Mortgage Loans, notwithstanding that the terms of such Serviced
Mortgage Loans so permit. The foregoing shall in no way limit the Master
Servicer's ability to charge and collect from the Mortgagor such costs together
with interest thereon.
The Special Servicer shall give the Master Servicer, the Trustee and
the Certificate Administrator not less than five Business Days' notice (or, in
an emergency situation, not less than two Business Days' notice) with respect to
Servicing Advances to be made on any Specially Serviced Mortgage Loan or
Administered REO Property, before the date on which the Master Servicer is
required to make any Servicing Advance with respect to a given Serviced Mortgage
Loan or Administered REO Property; provided, however, that the Special Servicer
may (without implying any duty to do so) make any Servicing Advance on a
Specially Serviced Mortgage Loan or Administered REO Property only as may be
required on an urgent or emergency basis. In addition, the Special Servicer
shall provide the Master Servicer or 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 Servicing Advance. The Special Servicer shall not be entitled to
deliver such a notice (other than for emergency Servicing Advances) more
frequently than once per calendar month (although such notice may relate to more
than one Servicing Advance). The Master Servicer will have the obligation to
make any such Servicing Advance (other than a Nonrecoverable Servicing Advance)
that it is so requested by a Special Servicer to make, within five days after
the Master Servicer's receipt of such request. If the request is timely and
properly made, the Special Servicer shall be relieved of any obligations with
respect to a Servicing Advance that it so requests the Master Servicer to make
with respect to any Specially Serviced Mortgage Loan or Administered REO
Property (regardless of whether or not the Master Servicer shall make such
Servicing Advance). The Master Servicer shall be entitled to reimbursement for
any Servicing Advance made by it at the direction of a Special Servicer,
together with interest accrued thereon, at the same time, in the same manner and
to the same extent as the Master Servicer is entitled with respect to any other
Servicing Advances made thereby. Any request by the Special Servicer that the
Master Servicer make a Servicing Advance shall be deemed to be a determination
by the Special Servicer that such requested Servicing Advance is not a
Nonrecoverable Servicing Advance, and the Master Servicer shall be entitled to
conclusively rely on such determination. On the fourth Business Day before each
Distribution Date, the Special Servicer shall report to the Master Servicer the
Special Servicer's determination that any Servicing Advance previously made with
respect to a Specially Serviced Mortgage Loan or Serviced REO Loan is a
Nonrecoverable Servicing Advance. The Master Servicer shall act in accordance
with such determination.
No later than 1:00 p.m., New York City time, on the first
Determination Date that follows the date on which it makes any Servicing
Advance, the Special Servicer shall provide the Master Servicer an Officer's
Certificate (via facsimile) setting forth the details of the Servicing Advance,
upon which the Master Servicer may conclusively rely in reimbursing the Special
Servicer. The Master Servicer shall be obligated, out of its own funds, to
reimburse the Special Servicer for any unreimbursed Servicing Advances (other
than Nonrecoverable Servicing Advances) made by the Special Servicer together
with interest thereon at the Reimbursement Rate from the date made to, but not
including, the date of reimbursement. Any such reimbursement, together with any
accompanying payment of interest, shall be made by the Master Servicer, by wire
transfer of immediately available funds to an account designated by the Special
Servicer, no later than the first P&I Advance Date that is at least five (5)
days after the date on which the Master Servicer receives the corresponding
Officer's Certificate contemplated by the prior sentence; provided that any such
Officer's Certificate received after 1:00 p.m., New York City time, on any
particular date shall, for purposes of any such reimbursement, be deemed
received on the next succeeding Business Day. Upon its reimbursement to the
Special Servicer of any Servicing Advance and payment to the Special Servicer of
interest thereon, the Master Servicer shall for all purposes of this Agreement
be deemed to have made such Servicing Advance at the same time as the Special
Servicer actually made such Servicing Advance, and accordingly, the Master
Servicer shall be entitled to reimbursement for such Servicing Advance, together
with interest accrued thereon, at the same time, in the same manner and to the
same extent as the Master Servicer would otherwise have been entitled if it had
actually made such Servicing Advance at the time the Special Servicer did.
Notwithstanding the foregoing provisions of this Section 3.03(c),
the Master Servicer shall not be required to reimburse the Special Servicer for,
or to make at the direction of the Special Servicer, any Servicing Advance if
the Master Servicer determines in accordance with the Servicing Standard that
such Servicing Advance, although not characterized by the Special Servicer as a
Nonrecoverable Servicing Advance, is in fact a Nonrecoverable Servicing Advance.
The Master Servicer shall notify the Special Servicer in writing of such
determination and, if applicable, such Nonrecoverable Servicing Advance shall be
reimbursed to the Special Servicer pursuant to Section 3.05(a) or 3.05(e).
If the Master Servicer is required under any provision of this
Agreement (including, but not limited to, this Section 3.03(c)) to make a
Servicing Advance, but does not do so within 15 days after such Advance is
required to be made, the Certificate Administrator shall, if a Responsible
Officer of the Certificate Administrator has actual knowledge of such failure on
the part of the Master Servicer, give written notice of such failure to the
Master Servicer and the Trustee. If such Servicing Advance is not made by the
Master Servicer within five Business Days after such notice then (subject to a
determination that such Servicing Advance would not be a Nonrecoverable
Servicing Advance) the Trustee shall make such Servicing Advance. Any failure by
the Master Servicer to make a Servicing Advance hereunder shall constitute an
Event of Default by the Master Servicer subject to and as provided in Section
7.01.
(d) In connection with its recovery of any Servicing Advance from
the Collection Account pursuant to Section 3.05(a) or from a Loan Combination
Custodial Account pursuant to Section 3.05(e), as applicable, each of the Master
Servicer, the Special Servicer and the Trustee shall be entitled to receive, out
of amounts then on deposit in the Collection Account as provided in Section
3.05(a) or in such Loan Combination Custodial Account as provided in Section
3.05(e), as applicable, any unpaid interest at the Reimbursement Rate in effect
from time to time, accrued on the amount of such Servicing Advance (to the
extent made with its own funds) from the date made to but not including the date
of reimbursement, such interest to be payable: first, out of Default Charges
received on the related Serviced Mortgage Loans and Administered REO Properties
during the Collection Period in which such reimbursement is made, and to the
extent that such Default Charges are insufficient, but only after or at the same
time the related Advance has been or is reimbursed pursuant to this Agreement,
then from general collections on the Trust Mortgage Loans then on deposit in the
Collection Account or in such Loan Combination Custodial Account, as applicable;
provided that interest on Servicing Advances with respect to a Loan Combination
or any related Loan Combination Mortgaged Property shall, to the maximum extent
permitted under the related Loan Combination Intercreditor Agreement, be payable
out of amounts otherwise payable to the related B-Noteholder (in the case of an
A/B Loan Combination) or the Glendale Galleria Subordinate Noteholders (in the
case of the Glendale Galleria Loan Combination) and/or payments received from
the related B-Noteholder (in the case of an A/B Loan Combination) or the
Glendale Galleria Subordinate Noteholders (in the case of the Glendale Galleria
Loan Combination), in each case under the related Loan Combination Intercreditor
Agreement for such purpose. Subject to any exercise of the option to defer
reimbursement for Advances pursuant to Section 4.03(f), the Master Servicer
shall reimburse itself, the Special Servicer or the Trustee, as applicable, for
any outstanding Servicing Advance made thereby as soon as practicable after
funds available for such purpose have been received by the Master Servicer, and
in no event shall interest accrue in accordance with this Section 3.03(d) on any
Servicing Advance as to which the corresponding Escrow Payment or other similar
payment by the Mortgagor was received by the Master Servicer on or prior to the
date the related Servicing Advance was made.
(e) The determination by the Master Servicer or the Special Servicer
that either has made a Nonrecoverable Servicing Advance or that any proposed
Servicing Advance, if made, would constitute a Nonrecoverable Servicing Advance,
shall be made in accordance with the Servicing Standard and shall be evidenced
by an Officer's Certificate delivered promptly to the Trustee, the Certificate
Administrator, the Depositor and, in the case of a Loan Combination, the related
Non-Trust Noteholder(s), setting forth the basis for such determination,
together with a copy of any Appraisal (the cost of which may be paid out of the
Collection Account pursuant to Section 3.05(a) or, in the case of a Loan
Combination, out of the related Loan Combination Custodial Account pursuant to
Section 3.05(e)) of the related Mortgaged Property or REO Property, as the case
may be; which Appraisal shall be obtained pursuant to Section 3.09(a) by the
Master Servicer, or by or on behalf of the Special Servicer if the Mortgage Loan
is a Defaulted Mortgage Loan (or, if no such Appraisal has been performed, a
copy of an Appraisal of the related Mortgaged Property or REO Property,
performed within the twelve months preceding such determination and the party
delivering such appraisal has no actual knowledge of a material adverse change
in the condition of the related Mortgaged Property that would draw into question
the applicability of such Appraisal) and further accompanied by related
Mortgagor operating statements and financial statements, budgets and rent rolls
of the related Mortgaged Property and any engineers' reports, environmental
surveys or similar reports that the Master Servicer or the Special Servicer may
have obtained and that support such determination. The Trustee shall act in
accordance with any determination made by the Master Servicer or the Special
Servicer that a Servicing Advance, if made, would be a Nonrecoverable Advance
and shall be entitled to rely, conclusively, on such determination by the Master
Servicer or the Special Servicer; provided, however, that if the Master Servicer
has failed to make a Servicing Advance for reasons other than a determination by
the Master Servicer or the Special Servicer that such Servicing Advance would be
a Nonrecoverable Advance, the Trustee shall make such Servicing Advance within
the time periods required by Section 3.03(c) unless the Trustee in good faith
makes a determination that such Servicing Advance would be a Nonrecoverable
Advance. The applicable Person shall consider Unliquidated Advances in respect
of prior Servicing Advances as outstanding Advances for purposes of
recoverability determinations as if such Unliquidated Advance were a Servicing
Advance.
(f) The Master Servicer shall, as to all Serviced Mortgage Loans,
establish and maintain, as applicable, one or more accounts (the "Reserve
Accounts"), into which all Reserve Funds, if any, shall be deposited and
retained; provided that, in the case of a Loan Combination, if the related
Reserve Account includes funds with respect to any other Serviced Mortgage Loan,
then the Master Servicer shall maintain a separate sub-account of such Reserve
Account that relates solely to such Loan Combination. Withdrawals of amounts so
deposited may be made (i) to pay for, or to reimburse the related Mortgagor in
connection with, the related environmental remediation, repairs and/or capital
improvements at the related Mortgaged Property if the repairs and/or capital
improvements have been completed, and such withdrawals are made in accordance
with the Servicing Standard and the terms of the related Mortgage Note, Mortgage
and any agreement with the related Mortgagor governing such Reserve Funds and
any other items for which such Reserve Funds were intended pursuant to the loan
documents, (ii) to pay the Master Servicer interest and investment income earned
on amounts in the Reserve Accounts if permitted under the related Mortgage Loan
documents and (iii) during an event of default under the related Serviced
Mortgage Loan, for any other purpose permitted by the related Mortgage Loan
documents, applicable law and the Servicing Standard. To the extent permitted in
the applicable Mortgage Loan documents, funds in the Reserve Accounts to the
extent invested may be only invested in Permitted Investments in accordance with
the provisions of Section 3.06. All Reserve Accounts shall be Eligible Accounts.
The Reserve Accounts shall not be considered part of the segregated pool of
assets comprising REMIC I, REMIC II, Grantor Trust A-3FL, Grantor Trust A-4FC or
Grantor Trust Z. Consistent with the Servicing Standard, the Master Servicer may
waive or extend the date set forth in any agreement governing such Reserve Funds
by which the required repairs and/or capital improvements at the related
Mortgaged Property must be completed.
(g) Notwithstanding anything to the contrary in this Agreement, but
subject to the limitations on reimbursements in Section 4.03, the Master
Servicer may (and, at the direction of the Special Servicer if a Specially
Serviced Mortgage Loan or an Administered REO Property is involved, shall) pay
directly out of the Collection Account or, with respect to a servicing expense
relating to a Non-Trust Loan or related to a Loan Combination Mortgaged
Property, out of the related Loan Combination Custodial Account any servicing
expense that, if paid by the Master Servicer or the Special Servicer, would
constitute a Nonrecoverable Servicing Advance for the subject Serviced Mortgage
Loan or Administered REO Property; provided that the Master Servicer (or the
Special Servicer, if a Specially Serviced Mortgage Loan or an Administered REO
Property is involved) has determined in accordance with the Servicing Standard
that making such payment is in the best interests of the Certificateholders (as
a collective whole) (or, with respect to a Loan Combination, to the extent paid
out of the related Loan Combination Custodial Account, in the best interests of
the Certificateholders and the related Non-Trust Noteholder(s), as a collective
whole), as evidenced by an Officer's Certificate delivered promptly to the
Depositor, the Trustee, the Certificate Administrator and the Controlling Class
Representative, setting forth the basis for such determination and accompanied
by any information that such Person may have obtained that supports such
determination. The Master Servicer and the Special Servicer shall deliver a copy
of any such Officer's Certificate (and accompanying information) promptly to the
other such Person.
(h) To the extent an operations and maintenance plan is required to
be established and executed pursuant to the terms of a Serviced Mortgage Loan
(each of which Serviced Mortgage Loans is listed on Exhibit T hereto), the
Master Servicer shall request from the Mortgagor written confirmation thereof
within a reasonable time after the later of the Closing Date and the date as of
which such plan is required to be established or completed. To the extent any
repairs, capital improvements, actions or remediations are required to have been
taken or completed pursuant to the terms of the Serviced Mortgage Loan, the
Master Servicer shall request from the Mortgagor written confirmation of such
actions and remediations within a reasonable time after the later of the Closing
Date and the date as of which such action or remediations are required to be or
to have been taken or completed. To the extent a Mortgagor shall fail to
promptly respond to any inquiry described in this Section 3.03(h), the Master
Servicer shall determine whether the Mortgagor has failed to perform its
obligations under the respective Serviced Mortgage Loan and report any such
failure to the Special Servicer within a reasonable time after the date as of
which such operations and maintenance plan is required to be established or
executed or the date as of which such actions or remediations are required to be
or to have been taken or completed.
SECTION 3.04. Collection Account, Interest Reserve Account,
Additional Interest Account, Distribution Account,
Gain-on-Sale Reserve Account, Floating Rate Account
and Loan Combination Custodial Accounts.
(a) The Master Servicer shall establish and maintain one or more
accounts (collectively, the "Collection Account"), held on behalf of the Trustee
in trust for the benefit of the Certificateholders. The Collection Account shall
be an Eligible Account. The Master Servicer shall deposit or cause to be
deposited in the Collection Account, within one Business Day of receipt of
available funds (in the case of payments by Mortgagors or other collections on
the Trust Mortgage Loans) or as otherwise required hereunder, the following
payments and collections received or made by the Master Servicer or on its
behalf subsequent to the Cut-off Date (other than in respect of principal and
interest on the Trust Mortgage Loans due and payable on or before the Cut-off
Date, which payments shall be delivered promptly to the applicable Mortgage Loan
Seller or its designee, with negotiable instruments endorsed as necessary and
appropriate without recourse), other than amounts received from Mortgagors which
are to be used to purchase defeasance collateral, or payments (other than
Principal Prepayments) received by it on or prior to the Cut-off Date but
allocable to a period subsequent thereto:
(i) all payments on account of principal of the Trust Mortgage Loans
including Principal Prepayments;
(ii) all payments on account of interest on the Trust Mortgage Loans
including Additional Interest and Penalty Interest;
(iii) all Prepayment Premiums, Yield Maintenance Charges and late
payment charges received in respect of the Trust Mortgage Loans;
(iv) all Insurance Proceeds and Liquidation Proceeds (other than
Gain-on-Sale Proceeds) received in respect of any Trust Mortgage Loan, and
together with any amounts representing recoveries of Workout-Delayed
Reimbursement Amounts and/or Nonrecoverable Advances in respect of the
related Trust Mortgage Loans, in each case to the extent not otherwise
required to be applied to the restoration of the Mortgaged Property or
released to the related Mortgagor;
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect
to Permitted Investments of funds held in the Collection Account;
(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a deductible clause in a blanket hazard policy;
(vii) any amounts required to be transferred from an REO Account
pursuant to Section 3.16(c);
(viii) any amount in respect of Purchase Prices and Substitution
Shortfall Amounts pursuant to Section 2.03(b);
(ix) any amount required to be deposited by the Master Servicer
pursuant to Section 3.19(a) in connection with Prepayment Interest
Shortfalls;
(x) [RESERVED];
(xi) any amount paid by or on behalf of a Mortgagor to cover items
for which a Servicing Advance has been previously made, and payments
collected in respect of Unliquidated Advances;
(xii) any amounts representing a reimbursement, payment and/or
contribution due and owing to the Trust from a Non-Trust Noteholder in
accordance with the related Loan Combination Intercreditor Agreement;
(xiii) any amounts required to be transferred from any Loan
Combination Custodial Account pursuant to Section 3.05(e); and
(xiv) all remittances to the Trust under the MLMT Series 2005-CKI1
Pooling and Servicing Agreement and/or the Glendale Galleria Intercreditor
Agreement with respect to the Glendale Galleria Trust Mortgage Loan or any
Glendale Galleria REO Property;
provided that, in the case of a Trust Mortgage Loan that is part of a Loan
Combination, any amounts required to be deposited in the related Loan
Combination Custodial Account, pursuant to Section 3.04(h), shall first be so
deposited therein and shall thereafter be transferred to the Collection Account
only to the extent provided in Section 3.05(e).
The foregoing requirements for deposit in the Collection Account
shall be exclusive. Notwithstanding the foregoing, actual payments from
Mortgagors in the nature of Escrow Payments, amounts to be deposited in Reserve
Accounts, and amounts that the Master Servicer and the Special Servicer are
entitled to retain as additional servicing compensation pursuant to Sections
3.11(b) and (d), need not be deposited by the Master Servicer in the Collection
Account. If the Master Servicer shall deposit in the Collection Account any
amount not required to be deposited therein, it may at any time withdraw such
amount from the Collection Account, any provision herein to the contrary
notwithstanding. The Master Servicer shall promptly deliver to the Special
Servicer as additional special servicing compensation in accordance with Section
3.11(d), assumption fees, late payment charges (to the extent not applied to pay
interest on Advances or Additional Trust Fund Expenses as provided in Sections
3.03(d) and 4.03(d) or otherwise applied pursuant to Section 3.26) and other
transaction fees or other expenses received by the Master Servicer to which the
Special Servicer is entitled pursuant to Section 3.11 upon receipt of a
certificate of a Servicing Officer of the Special Servicer describing the item
and amount. The Collection Account shall be maintained as a segregated account,
separate and apart from trust funds created for mortgage pass-through
certificates of other series and the other accounts of the Master Servicer.
Upon receipt of any of the amounts described in clauses (i) through
(iv), (xi) and (xii) of the second preceding paragraph with respect to any
Serviced Trust Mortgage Loan, the Special Servicer shall promptly, but in no
event later than one Business Day after receipt of available funds, remit such
amounts (net of any reimbursable expenses incurred by the Special Servicer) to
or at the direction of the Master Servicer for deposit into the Collection
Account in accordance with the second preceding paragraph or any related Loan
Combination Custodial Account pursuant to Section 3.04(h), unless the Special
Servicer determines, consistent with the Servicing Standard, that a particular
item should not be deposited because of a restrictive endorsement. Any such
amounts received by the Special Servicer with respect to an Administered REO
Property shall be deposited by the Special Servicer into the related REO Account
and remitted to the Master Servicer for deposit into the Collection Account or
any applicable Loan Combination Custodial Account, as the case may be, pursuant
to Section 3.16(c). With respect to any such amounts paid by check to the order
of the Special Servicer, the Special Servicer shall endorse such check to the
order of the Master Servicer and shall deliver promptly, but in no event later
than two Business Days after receipt, any such check to the Master Servicer by
overnight courier, unless the Special Servicer determines, consistent with the
Servicing Standard, that a particular item cannot be so endorsed and delivered
because of a restrictive endorsement or other appropriate reason.
(b) The Certificate Administrator shall establish and maintain one
or more trust accounts (collectively, the "Distribution Account") at the
Corporate Trust Office to be held in trust for the benefit of the
Certificateholders. The Distribution Account shall be an Eligible Account. The
Master Servicer shall deliver to the Certificate Administrator each month on or
before 2:00 PM (New York City time) on the P&I Advance Date therein, for deposit
in the Distribution Account, an aggregate amount of immediately available funds
equal to that portion of the Available Distribution Amount (calculated without
regard to clauses (a)(ii), (a)(v), (b)(ii)(B) and (b)(v) of the definition
thereof) for the related Distribution Date then on deposit in the Collection
Account, together with (i) any Prepayment Premiums and/or Yield Maintenance
Charges received on the Trust Mortgage Loans during the related Collection
Period, and (ii) in the case of the final Distribution Date, any additional
amounts contemplated by the second or third, as applicable, paragraph of Section
9.01.
In addition, the Master Servicer shall, as and when required
hereunder, deliver to the Certificate Administrator for deposit in the
Distribution Account:
(i) any P&I Advances required to be made by the Master Servicer in
accordance with Section 4.03(a); and
(ii) the aggregate purchase price paid in connection with the
purchase by the Master Servicer of all of the Trust Mortgage Loans and any
REO Properties (net of any portion of such aggregate purchase price to be
paid to any Non-Trust Noteholder(s)) pursuant to Section 9.01, exclusive
of the portion of such amounts required to be deposited in the Collection
Account pursuant to Section 9.01.
If, in connection with any Distribution Date, the Certificate
Administrator has reported the amount of an anticipated distribution to the
Depository based on information reported to it by the Master Servicer pursuant
to Section 3.12, and the funds (including, but not limited to, unscheduled
payments, late payments, Principal Prepayments or Balloon Payments) remitted to
it by the Master Servicer differ in amount from what was reported to the
Certificate Administrator by the Master Servicer, the Certificate Administrator
shall use commercially reasonable efforts to cause the Depository to revise the
related distribution and make such revised distribution on a timely basis on
such Distribution Date, but there can be no assurance that the Depository can do
so. The Trustee, the Master Servicer, the Special Servicer and the Certificate
Administrator shall not be liable or held responsible for any resulting delay
(or claims by the Depository resulting therefrom) in the making of such revised
distribution to the Certificateholders. In addition, if the Certificate
Administrator incurs out-of-pocket expenses, despite reasonable efforts to avoid
and mitigate such expenses, as a consequence of attempting to revise such
distribution to the Depository, the Certificate Administrator shall be entitled
to reimbursement from the Trust Fund, payable from amounts on deposit in the
Distribution Account.
The Certificate Administrator shall, upon receipt, deposit in the
Distribution Account any and all amounts received by the Certificate
Administrator that are required by the terms of this Agreement to be deposited
therein. The Certificate Administrator shall also deposit into the Distribution
Account any amounts required to be deposited by the Certificate Administrator
pursuant to Section 3.06 in connection with losses incurred with respect to
Permitted Investments of funds held in the Distribution Account.
(c) The Certificate Administrator shall establish and maintain one
or more accounts (which may be sub-accounts of the Distribution Account)
(collectively, the "Interest Reserve Account"), in trust for the benefit of the
Certificateholders. The Interest Reserve Account shall be an Eligible Account.
On or before each Distribution Date in February and, during each year that is
not a leap year, January, the Certificate Administrator shall withdraw from the
Distribution Account and deposit in the Interest Reserve Account, with respect
to each Interest Reserve Loan, an amount equal to the Interest Reserve Amount in
respect of such Interest Reserve Loan for such Distribution Date (such
withdrawal from the Distribution Account to be made out of general collections
on the Mortgage Pool including any related P&I Advance that was deposited in the
Distribution Account). The Certificate Administrator shall also deposit into the
Interest Reserve Account any amounts required to be deposited by the Certificate
Administrator pursuant to Section 3.06 in connection with losses incurred with
respect to Permitted Investments of funds held in the Interest Reserve Account.
(d) Prior to any Collection Period during which Additional Interest
is received on the Trust Mortgage Loans, and upon notification from the Master
Servicer or Special Servicer pursuant to Section 3.02(d), the Certificate
Administrator shall establish and maintain the Additional Interest Account in
the name of the Trustee in trust for the benefit of the Class Z
Certificateholders. The Additional Interest Account shall be established and
maintained as an Eligible Account. Prior to each Distribution Date, the Master
Servicer shall remit to the Certificate Administrator for deposit in the
Additional Interest Account an amount equal to the Additional Interest received
on the Trust ARD Loans and any successor Trust REO Loans with respect thereto
during the applicable Collection Period. The Certificate Administrator shall
also deposit into the Additional Interest Account any amounts required to be
deposited by the Certificate Administrator pursuant to Section 3.06 in
connection with losses incurred with respect to Permitted Investments of funds
held in the Additional Interest Account.
Following the distribution of Additional Interest to Class Z
Certificateholders on the first Distribution Date after which there are no
longer any Trust Mortgage Loans outstanding which pursuant to their terms could
pay Additional Interest or any successor Trust REO Loans with respect thereto,
the Certificate Administrator shall terminate the Additional Interest Account.
(e) The Certificate Administrator shall establish (upon notice from
the Special Servicer of an event occurring that generates Gain-on-Sale Proceeds)
and maintain the Gain-on-Sale Reserve Account in trust for the benefit of the
Certificateholders. The Gain-on-Sale Reserve Account shall be an Eligible
Account. The Gain-on-Sale Reserve Account shall be maintained as a segregated
account or a sub-account of the Distribution Account, separate and apart from
trust funds for mortgage pass-through certificates of other series administered
by the Certificate Administrator and other accounts of the Certificate
Administrator.
Upon the liquidation of a Trust Specially Serviced Mortgage Loan or
the disposition of any Administered REO Property in accordance with Section 3.09
or Section 3.18 or the liquidation of the Glendale Galleria Trust Mortgage Loan
or the disposition of any Glendale Galleria REO Property in accordance with the
MLMT Series 2005-CKI1 Pooling and Servicing Agreement and/or the Glendale
Galleria Intercreditor Agreement, the Special Servicer (or, in the case of the
Glendale Galleria Trust Mortgage Loan or any Glendale Galleria REO Property, the
Master Servicer) shall calculate the Gain-on-Sale Proceeds, if any, realized in
connection with such event and remit such funds to the Certificate Administrator
for deposit into the Gain-on-Sale Reserve Account. The Certificate Administrator
shall deposit into the Gain-on-Sale Reserve Account any amounts required to be
deposited by the Certificate Administrator pursuant to Section 3.06 in
connection with losses incurred with respect to Permitted Investments of funds
held in the Gain-on-Sale Reserve Account.
(f) The Certificate Administrator shall establish and maintain the
Floating Rate Account, which shall consist of two sub-accounts. One of those
sub-accounts (the "Class A-3FL Sub-Account") shall be held in trust for the
benefit of the Holders of the Class A-3FL Certificates and the Class A-3FL Swap
Counterparty, as their interests may appear, and the other such sub-account (the
"Class A-4FC Sub-Account") for the benefit of the Holders of the Class A-4FC
Certificates and the Class A-4FC Swap Counterparty, as their interests may
appear. The Floating Rate Account shall be established and maintained as an
Eligible Account consisting of the two sub-accounts described in the preceding
sentence or, subject to Section 3.04(g), two subaccounts of the Distribution
Account. The Certificate Administrator shall make or be deemed to have made
deposits in and withdrawals from the Floating Rate Account in accordance with
the terms of this Agreement. The Certificate Administrator shall, as and when
required, deposit in the applicable sub-account of the Floating Rate Account any
amounts required to be so deposited by the Certificate Administrator pursuant to
Section 3.06 in connection with losses incurred with respect to Permitted
Investments of funds held in the Floating Rate Account and, to the extent
permitted by Section 3.06, may withdraw any Net Investment Earnings from the
applicable sub-account of the Floating Rate Account. The Certificate
Administrator shall deposit into the applicable sub-account of the Floating Rate
Account (i.e., the Class A-3FL Sub-Account, in the case of clauses (i) and (iii)
of this sentence, and the Class A-4FC Sub-Account, in the case of clauses (ii)
and (iv) of this sentence): (i) all amounts distributable with respect to the
Class A-3FL REMIC II Regular Interest pursuant to Sections 4.01 and 9.01 for
each Distribution Date; (ii) all amounts distributable with respect to the Class
A-4FC REMIC II Regular Interest pursuant to Sections 4.01 and 9.01 for each
Distribution Date; (iii) upon receipt, all amounts received from the Class A-3FL
Swap Counterparty under the Class A-3FL Swap Agreement intended for distribution
on the Class A-3FL Certificates; and (iv) upon receipt, all amounts received
from the Class A-4FC Swap Counterparty under the Class A-4FC Swap Agreement
intended for distribution on the Class A-4FC Certificates.
(g) Notwithstanding that any of the Interest Reserve Account, the
Additional Interest Account, the Gain-on-Sale Reserve Account or each
sub-account comprising the Floating Rate Account may be a sub-account of the
Distribution Account for reasons of administrative convenience, each of the
Interest Reserve Account, the Additional Interest Account and the Gain-on-Sale
Reserve Account and the Distribution Account shall, for all purposes of this
Agreement (including the obligations and responsibilities of the Trustee and the
Certificate Administrator hereunder), be considered to be and shall be required
to be treated as, separate and distinct accounts. The Certificate Administrator
shall indemnify and hold harmless the Trust Fund against any losses arising out
of the failure by the Certificate Administrator to perform its duties and
obligations hereunder as if such accounts were separate accounts. The provisions
of this paragraph shall survive any resignation or removal of the Certificate
Administrator and appointment of a successor certificate administrator.
(h) The Master Servicer shall establish and maintain, or cause to be
established and maintained, one or more separate accounts for the Loan
Combinations that includes a Serviced Mortgage Loan (collectively, as to each
Loan Combination, the related "Loan Combination Custodial Account") (which may
be a sub-account of the Collection Account), into which, subject to the related
Loan Combination Intercreditor Agreement, the Master Servicer shall deposit or
cause to be deposited on a daily basis (and in no event later than the Business
Day following its receipt of available funds) the following payments and
collections received after the Closing Date:
(i) all payments on account of principal, including Principal
Prepayments, on such Loan Combination;
(ii) all payments on account of interest, including Penalty
Interest, on such Loan Combination;
(iii) all Prepayment Premiums, Yield Maintenance Charges and late
payment charges on such Loan Combination;
(iv) all Insurance Proceeds and Liquidation Proceeds (other than
Gain-on-Sale Proceeds, and, insofar as they relate to the purchase or
other acquisition of the related Trust Mortgage Loan that is part of such
Loan Combination, other than Liquidation Proceeds described in clauses
(iv)-(ix) of the definition of "Liquidation Proceeds," which amounts shall
be required to be deposited in the Collection Account) received in respect
of such Loan Combination and together with any amounts representing
recoveries of Workout-Delayed Reimbursement Amounts or Nonrecoverable
Advances in respect of such Loan Combination, in each case to the extent
not otherwise required to be applied to the restoration of the Mortgaged
Property or released to the related Mortgagor;
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect
to Permitted Investments of funds held in such Loan Combination Custodial
Account;
(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a deductible clause in a blanket hazard policy;
(vii) any amounts required to be transferred to such Loan
Combination Custodial Account from the related REO Account pursuant to
Section 3.16(c);
(viii) insofar as they do not constitute Escrow Payments, any
amounts paid by or on behalf of the related Mortgagor with respect to such
Loan Combination specifically to cover items for which a Servicing Advance
has been made; and
(ix) any amounts representing a reimbursement, payment and/or
contribution due and owing to a party other than the Trust from a related
Non-Trust Noteholder in accordance with the related Loan Combination
Intercreditor Agreement and any amounts representing a cure payment made
by a related Non-Trust Noteholder in accordance with the related Loan
Combination Intercreditor Agreement.
The foregoing requirements for deposit by the Master Servicer in a
Loan Combination Custodial Account shall be exclusive, it being understood and
agreed that actual payments from the Mortgagor(s) in the nature of Escrow
Payments, charges for beneficiary statements or demands, assumption fees,
assumption application fees, modification fees, extension fees, defeasance fees,
earn-out fees, amounts collected for Mortgagor checks returned for insufficient
funds or other amounts that the Master Servicer or the Special Servicer is
entitled to retain as additional servicing compensation pursuant to Section 3.11
need not be deposited by the Master Servicer in a Loan Combination Custodial
Account. If the Master Servicer shall deposit in a Loan Combination Custodial
Account any amount not required to be deposited therein, it may at any time
withdraw such amount from such Loan Combination Custodial Account. The Master
Servicer shall promptly deliver to the Special Servicer, as additional special
servicing compensation in accordance with Section 3.11(d), all assumption fees
and assumption application fees (or the applicable portions thereof) and other
transaction fees received by the Master Servicer with respect to any Loan
Combination, to which the Special Servicer is entitled pursuant to such section,
upon receipt of a written statement of a Servicing Officer of the Special
Servicer describing the item and amount. Each Loan Combination Custodial Account
shall be maintained as a segregated account, separate and apart from trust funds
created for mortgage-backed securities of other series and the other accounts of
the Master Servicer.
Upon receipt of any of the amounts described in clauses (i) through
(iv), (viii) and (ix) of the second preceding paragraph with respect to a Loan
Combination, the Special Servicer shall promptly, but in no event later than one
Business Day after receipt, remit such amounts to the Master Servicer for
deposit into the related Loan Combination Custodial Account in accordance with
the second preceding paragraph, unless the Special Servicer determines,
consistent with the Servicing Standard, that a particular item should not be
deposited because of a restrictive endorsement or other appropriate reason. With
respect to any such amounts paid by check to the order of the Special Servicer,
the Special Servicer shall endorse such check to the order of the Master
Servicer, unless the Special Servicer determines, consistent with the Servicing
Standard, that a particular item cannot be so endorsed and delivered because of
a restrictive endorsement or other appropriate reason. Any such amounts received
by the Special Servicer with respect to an REO Property that relates to a Loan
Combination shall initially be deposited by the Special Servicer into the
related REO Account and thereafter remitted to the Master Servicer for deposit
into the related Loan Combination Custodial Account, all in accordance with
Section 3.16(c).
Notwithstanding that any Loan Combination Custodial Account may be a
sub-account of the Collection Account for reasons of administrative convenience,
each Loan Combination Custodial Account and the Collection Account shall, for
all purposes of this Agreement (including the obligations and responsibilities
of the Master Servicer hereunder), be considered to be and shall be required to
be treated as, separate and distinct accounts. The Master Servicer shall
indemnify and hold harmless the Trust Fund and each Non-Trust Noteholder against
any losses arising out of the failure by the Master Servicer to perform its
duties and obligations hereunder as if such accounts were separate accounts. The
provisions of this paragraph shall survive any resignation or removal of the
Master Servicer and appointment of a successor master servicer.
(i) Funds in the Collection Account, the Distribution Account, any
Loan Combination Custodial Account, the Gain-on-Sale Reserve Account, the
Interest Reserve Account and the Additional Interest Account may be invested
only in Permitted Investments in accordance with the provisions of Section 3.06.
The Master Servicer shall give written notice to the Trustee, the Certificate
Administrator, the Special Servicer and the Rating Agencies of the location of
the Collection Account and any Loan Combination Custodial Account as of the
Closing Date and of the new location of each such account prior to any change
thereof. The Certificate Administrator shall give written notice to the Master
Servicer, the Special Servicer and the Rating Agencies of any new location of
the Distribution Account prior to any change thereof.
SECTION 3.05. Permitted Withdrawals from the Collection Account, the
Interest Reserve Account, the Additional Interest
Account, the Distribution Account, the Floating Rate
Account and the Loan Combination Custodial Accounts.
(a) The Master Servicer may, from time to time, make withdrawals
from the Collection Account for any of the following purposes (the order set
forth below not constituting an order of priority for such withdrawals):
(i) to remit to the Certificate Administrator for deposit in the
Distribution Account the amounts required to be so deposited pursuant to
the first paragraph of Section 3.04(b) and any amount that may be applied
to make P&I Advances pursuant to Section 4.03(a);
(ii) to reimburse the Trustee and itself, in that order, for
xxxxxxxxxxxx X&X Advances in respect of any Trust Mortgage Loan or Trust
REO Loan (exclusive of any Serviced Trust Mortgage Loan that is part of a
Loan Combination and any successor Trust REO Loan with respect thereto),
the Trustee's and the Master Servicer's right to reimbursement pursuant to
this clause (ii) with respect to any P&I Advance (other than
Nonrecoverable Advances, which are reimbursable pursuant to clause (vii)
below) being limited to amounts that represent Late Collections of
interest (net of related Master Servicing Fees and, in the case of the
Glendale Galleria Trust Mortgage Loan, net of the related MLMT Series
2005-CKI1 Servicing Fee) and principal (net of any related Workout Fee or
Principal Recovery Fee) received in respect of the particular Trust
Mortgage Loan or Trust REO Loan (exclusive of any Serviced Trust Mortgage
Loan that is part of a Loan Combination or any successor Trust REO Loan
with respect thereto) as to which such P&I Advance was made; provided,
however, that if such P&I Advance becomes a Workout-Delayed Reimbursement
Amount, then such P&I Advance shall thereafter be reimbursed from the
portion of general collections and recoveries on or in respect of the
Trust Mortgage Loans and related REO Properties on deposit in the
Collection Account from time to time that represent principal to the
extent provided in clause (vii) below (to be allocated between the Loan
Groups as set forth in Section 1.02);
(iii) to pay to itself earned and unpaid Master Servicing Fees, in
respect of each Trust Mortgage Loan and Trust REO Loan (other than a
Serviced Trust Mortgage Loan that is part of a Loan Combination and any
successor Trust REO Loan with respect thereto), the Master Servicer's
right to payment pursuant to this clause (iii) with respect to any such
Trust Mortgage Loan or Trust REO Loan being limited to amounts received on
or in respect of such Trust Mortgage Loan (whether in the form of
payments, Liquidation Proceeds or Insurance Proceeds) or such Trust REO
Loan (whether in the form of REO Revenues, Liquidation Proceeds or
Insurance Proceeds) that are allocable as a recovery of interest thereon;
(iv) to pay to the Special Servicer earned and unpaid Special
Servicing Fees in respect of each Trust Specially Serviced Mortgage Loan
and Trust REO Loan;
(v) to pay the Special Servicer (or, if applicable, a predecessor
Special Servicer) earned and unpaid Workout Fees or Principal Recovery
Fees in respect of each Trust Specially Serviced Mortgage Loan, Trust
Corrected Mortgage Loan and/or Trust REO Loan (in each case other than a
Serviced Trust Mortgage Loan that is part of a Loan Combination or any
successor Trust REO Loan with respect thereto), in the amounts and from
the sources contemplated by Section 3.11(c);
(vi) to reimburse the Trustee, itself or the Special Servicer, in
that order, for any unreimbursed Servicing Advances in respect of any
Serviced Trust Mortgage Loan, Serviced Trust REO Loan or related
Administered REO Property (other than a Serviced Trust Mortgage Loan that
is part of a Loan Combination or any successor Trust REO Loan with respect
thereto or any related REO Property), the Trustee's, the Special
Servicer's and the Master Servicer's respective rights to reimbursement
pursuant to this clause (vi) with respect to any Servicing Advance being
limited first to payments made by or on behalf of the related Mortgagor
and cure payments that are allocable to such Servicing Advance, and then
to Liquidation Proceeds, Insurance Proceeds and, if applicable, REO
Revenues received in respect of the particular Serviced Mortgage Loan or
Administered REO Property as to which such Servicing Advance was made;
provided, however, that if such Servicing Advance becomes a
Workout-Delayed Reimbursement Amount, then such Servicing Advance shall
thereafter be reimbursed from the portion of general collections and
recoveries on or in respect of the Trust Mortgage Loans and related REO
Properties on deposit in the Collection Account from time to time that
represent collections or recoveries of principal to the extent provided in
clause (vii) below (to be allocated between the Loan Groups as set forth
in Section 1.02);
(vii) (A) to reimburse the Trustee, itself or the Special Servicer,
in that order, for any unreimbursed Advances that have been or are
determined to be (1) Nonrecoverable Advances with respect to any Mortgage
Loan or any related REO Property first, out of REO Revenues, Liquidation
Proceeds and Insurance Proceeds received on the related Trust Mortgage
Loan, then, out of the principal portion of general collections on the
Mortgage Pool (to be allocated between the Loan Groups as set forth in
Section 1.02), then, to the extent the principal portion of general
collections is insufficient and with respect to such excess only, subject
to any exercise of the sole discretion to defer reimbursement thereof
pursuant to Section 4.03(f), out of other collections on the Mortgage
Loans and related REO Properties, and/or (2) Workout-Delayed Reimbursement
Amounts, out of the principal portion of the general collections on the
Mortgage Pool (to be allocated between the Loan Groups as set forth in
Section 1.02), net of such amounts being reimbursed pursuant to (1) above,
together with, in the case of a Nonrecoverable Advance, interest thereon
being paid pursuant to clause (viii) below, or (B) to pay itself, with
respect to any Mortgage Loan or related REO Property (other than a
Serviced Trust Mortgage Loan that is part of a Loan Combination or any
successor Trust REO Loan or REO Property), any related earned Master
Servicing Fee that remained unpaid in accordance with clause (iii) above
following a Final Recovery Determination made with respect to such Trust
Mortgage Loan or related REO Property and the deposit into the Collection
Account of all amounts received in connection therewith;
(viii) at such time as it reimburses the Trustee, itself or the
Special Servicer, in that order, for any unreimbursed Advance (excluding
any such Advance that constitutes a Workout-Delayed Reimbursement Amount
for which interest was paid under clause (vii) above) pursuant to clause
(ii), (vi) or (vii) above, to pay the Trustee, itself or the Special
Servicer, as the case may be, in that order, any unpaid interest accrued
and payable thereon in accordance with Section 3.03(c), 3.03(d) or
4.03(d), as applicable; the Master Servicer's, the Special Servicer's
and/or the Trustee's right to payment pursuant to this clause (viii) with
respect to interest on any Advance being permitted to be satisfied (A) in
the case of interest on an Advance that has been or is determined to be a
Nonrecoverable Advance, out of the sources out of which the related
Advance may be satisfied as provided in clause (vii) above, as the case
may be, and (B) in the case of interest on an Advance that has not been
determined to be a Nonrecoverable Advance, (1) out of Default Charges
collected on or in respect of the related Trust Mortgage Loan or Trust REO
Loan during the Collection Period in which such Advance is reimbursed (the
use of such Default Charges to be allocated pursuant to Section 3.26), and
(2) to the extent that the Default Charges described in the immediately
preceding clause (1) are insufficient, but only at the same time or after
such Advance has been reimbursed, out of general collections on the Trust
Mortgage Loans and any related REO Properties on deposit in the Collection
Account;
(ix) to pay for property inspection costs and expenses incurred by
the Trust Fund as an Additional Trust Fund Expense pursuant to Section
3.12(a);
(x) (A) to pay itself, as additional servicing compensation in
accordance with Section 3.11(b), (1) interest and investment income earned
in respect of amounts held in the Collection Account as provided in
Section 3.06(b), but only to the extent of the Net Investment Earnings
with respect to the Collection Account for any Investment Period; and (2)
any Prepayment Interest Excesses (after deduction of the amounts required
to be deposited by the Master Servicer in the Collection Account for the
related Distribution Date pursuant to Section 3.19(a) in connection with
Prepayment Interest Shortfalls and amounts representing
Casualty/Condemnation Interest Shortfalls); and (B) to pay itself and the
Special Servicer, as additional servicing compensation in accordance with
Sections 3.11(b) and 3.11(d), respectively, Default Charges to the extent
provided in clause seventh of Section 3.26(a);
(xi) to pay for the cost of an independent appraiser or other expert
in real estate matters retained pursuant to Section 3.03(e), 3.09(a), 3.18
or 4.03(c), to the extent such cost is not required to be advanced
hereunder;
(xii) to pay itself, the Special Servicer, the Depositor, or any of
their respective Affiliates, directors, partners, members, managers,
shareholders, officers, employees or agents, as the case may be, any
amounts payable to any such Person pursuant to Section 6.03;
(xiii) to pay for (A) the advice of counsel and other experts
contemplated by Section 3.17(a)(iii), (B) the cost of the Opinions of
Counsel contemplated by Sections 3.09(b)(ii), 3.20(b) and 11.02(a), (C)
the cost of an Opinion of Counsel contemplated by Section 11.01(a),
11.01(b) or 11.01(c) in connection with any amendment to this Agreement
requested by the Master Servicer or the Special Servicer that protects or
is in furtherance of the rights and interests of Certificateholders, and
(D) the cost of recording this Agreement in accordance with Section
11.02(a);
(xiv) to pay itself, the Special Servicer, any of the Mortgage Loan
Sellers, the Plurality Subordinate Certificateholder or any other Person,
as the case may be, with respect to each Trust Mortgage Loan, if any,
previously purchased by such Person pursuant to this Agreement, all
amounts received thereon subsequent to the date of purchase;
(xv) to pay, out of general collections on the Mortgage Pool on
deposit in the Collection Account, to a Non-Trust Noteholder, any amount
(other than normal monthly payments) specifically payable or reimbursable
to such party by the Trust, in its capacity as holder of the related Trust
Mortgage Loan that is a part of the related Loan Combination or any
successor REO Loan with respect thereto, pursuant to the terms of the
related Loan Combination Intercreditor Agreement;
(xvi) to reimburse the Trustee, the Master Servicer and/or the
Special Servicer, as applicable, for unreimbursed Advances, unpaid Master
Servicing Fees and/or any unpaid interest on any Advances, but only to the
extent that such items relate to a Trust Mortgage Loan that is part of a
Loan Combination or any successor Trust REO Loan, each such party's
respective rights to reimbursement pursuant to this clause (xvi) being
limited to amounts on deposit in the Collection Account that represent
Liquidation Proceeds described in clauses (iv) through (ix) of the
definition thereof; provided that, such items may only be reimbursed to
any party pursuant to this clause (xvi) if and to the extent that such
items have not been or are not simultaneously being reimbursed to such
party pursuant to Section 3.05(e); and provided, further, that the amount
of any unpaid Master Servicing Fees, unreimbursed Advances and/or unpaid
interest on Advances reimbursable to any party pursuant to this clause
(xvi) shall be reduced by any related unpaid Master Servicing Fees,
unreimbursed Advances and unpaid interest on Advances in respect of the
subject Trust Mortgage Loan or Trust REO Loan which, following the
purchase or sale from which the subject Liquidation Proceeds have been
derived, will continue to be payable or reimbursable under the related
Loan Combination Intercreditor Agreement and/or any successor servicing
agreement with respect to the related Loan Combination to the Master
Servicer and/or the Special Servicer (and which amounts shall no longer be
payable hereunder) if the Master Servicer and/or the Special Servicer has
agreed to continue acting as a master servicer or special servicer, as the
case may be, of the related Loan Combination following the removal of the
related Trust Mortgage Loan from the Trust Fund;
(xvii) to remit to the Certificate Administrator for deposit into
the Additional Interest Account the amounts required to be deposited
pursuant to Section 3.04(d);
(xviii) to pay, out of general collections on the Mortgage Pool as
are then on deposit in the Collection Account, to the MLMT Series
2005-CKI1 Applicable Servicer or the MLMT Series 2005-CKI1 Trustee, any
amount payable by the Trust, in its capacity as holder of the Glendale
Galleria Trust Mortgage Loan, pursuant to the terms of the Glendale
Galleria Intercreditor Agreement;
(xix) to pay the cost of any Environmental Assessment (to the extent
not otherwise advanced pursuant to Section 3.09(c)) or any remedial,
corrective or other action pursuant to Section 3.09(c);
(xx) to withdraw any amounts deposited in error;
(xxi) to withdraw any other amounts that this Agreement expressly
provides may be withdrawn from the Collection Account; and
(xxii) to clear and terminate the Collection Account at the
termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan basis when appropriate, in connection with any
withdrawal from the Collection Account pursuant to clauses (ii)-(xix) above and
such records shall be sufficient to determine the amounts attributable to REMIC
I.
The Master Servicer shall pay to the Special Servicer, the Trustee
or the Certificate Administrator, on each P&I Advance Date from the Collection
Account amounts permitted to be paid to the Special Servicer, the Trustee or the
Certificate Administrator therefrom based on a certificate of a Servicing
Officer of the Special Servicer or of a Responsible Officer of the Trustee or
the Certificate Administrator, received not later than 1:00 p.m. (New York City
time) on the immediately preceding Determination Date and describing the item
and amount to which the Special Servicer, the Trustee or the Certificate
Administrator, as the case may be, is entitled. The Master Servicer may rely
conclusively on any such certificate and shall have no duty to re-calculate the
amounts stated therein. The Special Servicer shall keep and maintain separate
accounting for each Specially Serviced Mortgage Loan and REO Property, on a
loan-by-loan and property-by-property basis, for the purpose of substantiating
any request for withdrawal from the Collection Account. With respect to each
Mortgage Loan for which it makes an Advance, the Trustee shall similarly keep
and maintain separate accounting for each Mortgage Loan, on a loan-by-loan and
property-by-property basis, for the purpose of substantiating any request for
withdrawal from the Collection Account for reimbursements of Advances or
interest thereon.
In connection with any payments required to be made to a Non-Trust
Noteholder in accordance with Section 3.05(a)(xv), the Master Servicer may
request a written statement from such Non-Trust Noteholder, describing the
nature and amount of the item for which such party is seeking payment or
reimbursement and setting forth the provision(s) of the related Loan Combination
Intercreditor Agreement pursuant to which such party believes it is entitled to
reimbursement; provided that the Master Servicer may not condition payments
required to be made to a Non-Trust Noteholder in accordance with Section
3.05(a)(xv) upon receipt of such a written statement (other than as permitted
under the related Intercreditor Agreement); and provided, further, that to the
extent such a written statement from a Non-Trust Noteholder is received by the
Master Servicer, the Master Servicer may conclusively rely, absent manifest
error, upon such statement as to the nature and amount of the item for which
reimbursement is sought.
In connection with any payments required to be made to the MLMT
Series 2005-CKI1 Applicable Servicer or the MLMT Series 2005-CKI1 Trustee in
accordance with Section 3.05(a)(xviii), the Master Servicer may request a
written statement from a responsible officer of the MLMT Series 2005-CKI1
Applicable Servicer and/or the MLMT Series 2005-CKI1 Trustee, as applicable,
describing the nature and amount of the item for which such party is seeking
reimbursement and setting forth the provision(s) of the Glendale Galleria
Intercreditor Agreement pursuant to which such party believes it is entitled to
reimbursement; provided that the Master Servicer may not condition payments
required to be made to such party in accordance with Section 3.05(a)(xviii) upon
receipt of such a written statement (other than as permitted under the related
Intercreditor Agreement); and provided, further, that to the extent such a
written statement from the MLMT Series 2005-CKI1 Applicable Servicer or the MLMT
Series 2005-CKI1 Trustee is received by the Master Servicer, the Master Servicer
may conclusively rely, absent manifest error, upon such statement as to the
nature and amount of the item for which reimbursement is sought.
(b) The Certificate Administrator may, from time to time, make
withdrawals from the Distribution Account for any of the following purposes (in
no particular order of priority):
(i) to make deemed distributions to itself as holder of the REMIC I
Regular Interests, and to make distributions to Certificateholders and the
Floating Rate Account, on each Distribution Date, pursuant to Section 4.01
or 9.01, as applicable;
(ii) to pay itself or any of its directors, officers, employees and
agents, as the case may be, any amounts payable or reimbursable to any
such Person pursuant to Section 8.05;
(iii) to pay to the Trustee and itself respective portions of the
Trustee Fee as contemplated by Section 8.05(a) hereof with respect to the
Mortgage Loans;
(iv) to pay for the cost of the Opinions of Counsel sought by it (A)
as provided in clause (iv) of the definition of "Disqualified
Organization," (B) as contemplated by Section 3.20(b), 9.02(a) and
10.01(h), or (C) as contemplated by Section 11.01(a), 11.01(b) or 11.01(c)
in connection with any amendment to this Agreement requested by the
Certificate Administrator which amendment is in furtherance of the rights
and interests of Certificateholders;
(v) to pay any and all federal, state and local taxes imposed on any
of the REMICs created hereunder or on the assets or transactions of any
such REMIC, together with all incidental costs and expenses, to the extent
none of the Trustee, the Certificate Administrator, the REMIC
Administrator, the Master Servicer or the Special Servicer is liable
therefor pursuant to Section 10.01(i);
(vi) to pay the REMIC Administrator any amounts reimbursable to it
pursuant to Section 10.01(e);
(vii) to pay to the Master Servicer any amounts deposited by the
Master Servicer in the Distribution Account not required to be deposited
therein;
(viii) to withdraw any Interest Reserve Amount and deposit such
Interest Reserve Amount into the Interest Reserve Account pursuant to
Section 3.04(c);
(ix) to pay itself interest and investment income earned in respect
of amounts held in the Distribution Account as provided in Section
3.06(b), but only to the extent of the Net Investment Earnings with
respect to the Distribution Account for any Investment Period; and
(x) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
(c) The Certificate Administrator shall on each Distribution Date to
occur in March of each year, prior to any distributions required to be made to
Certificateholders on such date, withdraw from the Interest Reserve Account and
deposit into the Distribution Account in respect of each Interest Reserve Loan,
an amount equal to the aggregate of the Interest Reserve Amounts deposited into
the Interest Reserve Account pursuant to Section 3.04(c) during February and, if
applicable, January of that year.
(d) The Certificate Administrator shall, on any Distribution Date,
make withdrawals from the Additional Interest Account to the extent required to
make the distributions of Additional Interest required by Section 4.01(b).
(e) The Master Servicer may, from time to time, make withdrawals
from each Loan Combination Custodial Account for any of the following purposes
(the order set forth below not constituting an order of priority for such
withdrawals):
(i) to make remittances on each P&I Advance Date (or, with respect
to a Non-Trust Noteholder, on such earlier date as provided for in the
related Loan Combination Intercreditor Agreement) to the related Non-Trust
Noteholder(s) and to the Trust in accordance with the related Loan
Combination Intercreditor Agreements, such remittances to the Trust to be
made to the Collection Account;
(ii) to reimburse the Trustee and itself, in that order, for
xxxxxxxxxxxx X&X Advances made with respect to the related Trust Mortgage
Loan that is part of the related Loan Combination or any successor Trust
REO Loan, the Trustee's and the Master Servicer's right to reimbursement
pursuant to this clause (ii) with respect to any P&I Advance (other than
any P&I Advance that has been or is determined to be a Nonrecoverable
Advance, which shall be reimbursed in the manner contemplated in Section
3.05(a)(vii)) being limited to amounts that represent Late Collections of
interest (net of related Master Servicing Fees) and principal (net of any
related Workout Fee or Principal Recovery Fee) received in respect of the
related Trust Mortgage Loan that is part of the related Loan Combination
or any successor Trust REO Loan; provided, however, that if such P&I
Advance becomes a Workout-Delayed Reimbursement Amount, then such P&I
Advance shall thereafter be reimbursed in the manner contemplated in
Section 3.05(a)(vii);
(iii) to pay to itself earned and unpaid Master Servicing Fees in
respect of the related Loan Combination (including, without limitation,
any successor REO Loans comprising such), the Master Servicer's right to
payment pursuant to this clause (iii) with respect to the related Loan
Combination (including, without limitation, any successor REO Loans
comprising such) being limited to amounts received on or in respect of
such Mortgage Loans (whether in the form of payments, Liquidation Proceeds
or Insurance Proceeds) or such REO Loans (whether in the form of REO
Revenues, Liquidation Proceeds or Insurance Proceeds) that are allocable
as a recovery of interest thereon;
(iv) [RESERVED];
(v) to pay the Special Servicer (or, if applicable, a predecessor
Special Servicer) earned and unpaid Special Servicing Fees, Workout Fees
and/or Principal Recovery Fees in respect of the related Loan Combination
in the amounts provided in Section 3.11(c) and out of the collections
contemplated by the applicable Loan Combination Intercreditor Agreement;
(vi) to reimburse the Trustee, itself or the Special Servicer, in
that order, for any unreimbursed Servicing Advances in respect of the
related Loan Combination or any related Loan Combination REO Property, the
Trustee's, the Special Servicer's and the Master Servicer's respective
rights to reimbursement pursuant to this clause (vi) with respect to any
Servicing Advance being limited to payments made by or on behalf of the
related Mortgagor and cure payments that are allocable to such Servicing
Advance, or to Liquidation Proceeds, Insurance Proceeds and, if
applicable, REO Revenues received in respect of the related Loan
Combination or any related Loan Combination REO Property; provided,
however, that if such Servicing Advance becomes a Workout-Delayed
Reimbursement Amount, then such Servicing Advance shall thereafter be
reimbursed in the manner contemplated in Section 3.05(a)(vii);
(vii) to reimburse the Trustee, itself or the Special Servicer, in
that order, for any unreimbursed Servicing Advances in respect of the
related Loan Combination or any related Loan Combination REO Property that
have been or are determined to be Nonrecoverable Advances out of REO
Revenues, Liquidation Proceeds and Insurance Proceeds received on such
Loan Combination or any related Loan Combination REO Property; provided
that if REO Revenues, Liquidation Proceeds and Insurance Proceeds received
on the related Loan Combination or any related Loan Combination REO
Property are insufficient, then such Servicing Advance shall be reimbursed
in the manner contemplated in Section 3.05(a)(vii);
(viii) at such time as it reimburses the Trustee, itself or the
Special Servicer, in that order, for any unreimbursed Advance pursuant to
clause (ii), (vi) or (vii) above, to pay the Trustee, itself or the
Special Servicer, as the case may be, in that order, any unpaid interest
accrued and payable thereon in accordance with Section 3.03(d) or 4.03(d),
as applicable; the Master Servicer's, Special Servicer's and/or Trustee's
right to payment pursuant to this clause (viii) with respect to interest
on any Advance being permitted to be satisfied (A) out of Default Charges
collected on or in respect of the related Loan Combination, during the
Collection Period in which such Advance is reimbursed (the use of such
Default Charges to be allocated pursuant to Section 3.26), (B) to the
extent that the Default Charges described in the immediately preceding
clause (A) are insufficient, but only at the same time or after such
Advance has been reimbursed, out of general collections on the Loan
Combination and any related Loan Combination REO Property on deposit in
such Loan Combination Custodial Account, and (C) if general collections on
the related Loan Combination and any related Loan Combination REO Property
on deposit in such Loan Combination Custodial Account are insufficient and
such Advance has been or is determined to be a Nonrecoverable Advance, out
of the sources out of which the related Advance may be reimbursed as
provided in Section 3.05(a)(vii);
(ix) to pay for property inspection costs and expenses incurred by
the Trust Fund as an Additional Trust Fund Expense pursuant to Section
3.12(a), to the extent such costs and expenses relate to the related Loan
Combination Mortgaged Property;
(x) (A) to pay itself, as additional servicing compensation in
accordance with Section 3.11(b), (1) interest and investment income earned
in respect of amounts held in such Loan Combination Custodial Account as
provided in Section 3.06(b), but only to the extent of the Net Investment
Earnings with respect to such Loan Combination Custodial Account for any
Investment Period; and (2) any Prepayment Interest Excess with respect to
the Trust Mortgage Loan that is part of the related Loan Combination
(after deduction of the amounts required to be deposited by the Master
Servicer in the Collection Account for the related Distribution Date
pursuant to Section 3.19(a) in connection with Prepayment Interest
Shortfalls and amounts representing Casualty/Condemnation Interest
Shortfalls); and (B) to pay itself and the Special Servicer, as additional
servicing compensation in accordance with Sections 3.11(b) and 3.11(d),
respectively, Default Charges with respect to such Loan Combination to the
extent provided in clause seventh of Section 3.26(a);
(xi) to pay for the cost of an independent appraiser or other expert
in real estate matters retained pursuant to Section 3.03(e), 3.09(a), 3.18
or 4.03(c), to the extent those costs relate to such Loan Combination
and/or the related Loan Combination Mortgaged Property;
(xii) to pay itself, the Special Servicer, the Depositor, or any of
their respective Affiliates, directors, partners, members, managers,
shareholders, officers, employees or agents, as the case may be, any
amounts payable to any such Person pursuant to Section 6.03, to the extent
such amounts relate to such Loan Combination and/or the related Loan
Combination Mortgaged Property;
(xiii) to pay for (A) the advice of counsel and other experts
contemplated by Section 3.17(a)(iii), (B) the cost of the Opinions of
Counsel contemplated by Sections 3.09(b)(ii), 3.20(b) and 11.02(a), and
(C) the cost of recording the related Loan Combination Intercreditor
Agreement and any required opinion of counsel related thereto and, to the
extent applicable pursuant to Section 11.02(a), the allocable portion of
the cost of the Opinion of Counsel contemplated by Section 11.02(a) and,
in the case of each of (A) and (B) preceding, to the extent such amounts
relate to such Loan Combination and/or the related Loan Combination
Mortgaged Property;
(xiv) to pay itself, the Special Servicer, the related Mortgage Loan
Seller, the Plurality Subordinate Certificateholder or any other Person,
as the case may be, with respect to the related Trust Mortgage Loan in
such Loan Combination, if previously purchased by such Person pursuant to
this Agreement, all amounts received thereon subsequent to the date of
purchase;
(xv) [RESERVED];
(xvi) to pay the cost of any Environmental Assessment (to the extent
not otherwise advanced pursuant to Section 3.09(c)) or any remedial,
corrective or other action pursuant to Section 3.09(c), to the extent such
costs relate to such Loan Combination and/or the related Loan Combination
Mortgaged Property;
(xvii) to withdraw any amounts deposited in error;
(xviii) to withdraw any other amounts that this Agreement expressly
provides may be withdrawn from such Loan Combination Custodial Account;
and
(xix) to clear and terminate such Loan Combination Custodial Account
at the termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan basis when appropriate, in connection with any
withdrawal from a Loan Combination Custodial Account pursuant to clauses
(ii)-(xviii) above and such records shall be sufficient to determine the amounts
attributable to REMIC I.
The Master Servicer shall on each P&I Advance Date, remit to the
Trust and the related Non-Trust Noteholder(s) (excluding any Non-Trust
Noteholder with respect to the Glendale Galleria Loan Combination) and such
amounts as are distributable in respect of each Mortgage Loan that is part of a
Loan Combination (or any successor REO Loan with respect thereto) pursuant to
the corresponding Loan Combination Intercreditor Agreement, such remittances to
the Trust to be made to the Collection Account and such remittances to the
related Non-Trust Noteholder(s) to be made by wire transfer to the respective
accounts designated by such Non-Trust Noteholder(s) pursuant to the related Loan
Combination Intercreditor Agreements.
The Master Servicer shall pay to the Special Servicer, the Trustee
or the Certificate Administrator on each P&I Advance Date from any Loan
Combination Custodial Accounts amounts permitted to be paid to the Special
Servicer, the Trustee or the Certificate Administrator therefrom based on a
certificate of a Servicing Officer of the Special Servicer or of a Responsible
Officer of the Trustee or the Certificate Administrator received not later than
1:00 p.m. (New York City time) on the immediately preceding Determination Date
and describing the item and amount to which the Special Servicer, the Trustee or
the Certificate Administrator, as the case may be, is entitled. The Master
Servicer may rely conclusively on any such certificate and shall have no duty to
re-calculate the amounts stated therein. The Special Servicer shall keep and
maintain separate accounting for each Specially Serviced Mortgage Loan and REO
Property, on a loan-by-loan and property-by-property basis, for the purpose of
substantiating any request for withdrawal from a Loan Combination Custodial
Account. With respect to each Mortgage Loan for which it makes an Advance, the
Certificate Administrator shall similarly keep and maintain separate accounting
for each Mortgage Loan, on a loan-by-loan and property-by-property basis, for
the purpose of substantiating any request for withdrawal from a Loan Combination
Custodial Account for reimbursements of Advances or interest thereon.
If and to the fullest extent that it is permitted to do so pursuant
to the related Loan Combination Intercreditor Agreement, the Master Servicer
shall, consistent with the Servicing Standard, seek payment from the related
B-Noteholder (in the case of an A/B Loan Combination) or the Glendale Galleria
Pari Passu Noteholder and the Glendale Galleria Subordinate Noteholders (in the
case of the Glendale Galleria Loan Combination), to cover (or to reimburse the
Trust for the payment of) any cost or expense, including the reimbursement of
Advances and the payment of interest thereon, with respect to such Loan
Combination or any related REO Property that is not (but, subject to available
funds, would have been permitted to be) paid out of amounts otherwise payable to
such B-Noteholder (in the case of an A/B Loan Combination) or the Glendale
Galleria Pari Passu Noteholder and/or the Glendale Galleria Subordinate
Noteholders (in the case of the Glendale Galleria Loan Combination).
(f) In addition, the Certificate Administrator may from time to
time, make withdrawals from the Gain-on-Sale Reserve Account, the Additional
Interest Account and the Interest Reserve Account to pay itself interest and
investment income earned in respect of amounts held in the Gain-on-Sale Reserve
Account, the Additional Interest Account and the Interest Reserve Account,
respectively, as provided in Section 3.06(b), but in each case only to the
extent of the Net Investment Earnings with respect to the Gain-on-Sale Reserve
Account, the Additional Interest Account and the Interest Reserve Account,
respectively, for any Investment Period.
(g) The Certificate Administrator may, from time to time, make
withdrawals from the Floating Rate Account for (but only for) the following
purposes:
(i) solely to the extent of amounts on deposit in the Class A-3FL
Sub-Account, to make payments to the Class A-3FL Swap Counterparty
pursuant to Section 4.07(d);
(ii) solely to the extent of amounts on deposit in the Class A-3FL
Sub-Account, to make distributions to the Holders of the Class A-3FL
Certificates on each Distribution Date pursuant to Section 4.01(c);
(iii) solely to the extent of amounts on deposit in the Class A-4FC
Sub-Account, to make payments to the Class A-4FC Swap Counterparty
pursuant to Section 4.07(d);
(iv) solely to the extent of amounts on deposit in the Class A-4FC
Sub-Account, to make distributions to the Holders of the Class A-4FC
Certificates on each Distribution Date pursuant to Section 4.01(c);
(v) to pay itself Net Investment Earnings earned on funds held in
the Floating Rate Account;
(vi) to pay to the Persons entitled thereto any amounts deposited in
the Floating Rate Account in error; and
(vii) to clear and terminate the Floating Rate Account pursuant to
Section 9.01.
It is hereby acknowledged that amounts on deposit in the Class A-3FL
Sub-Account as of any Distribution Date and available for such purposes shall be
applied to make any payments to the Class A-3FL Swap Counterparty pursuant to,
and subject to the limitations and conditions set forth in, Section 4.07(d),
prior to being applied to make distributions to the Holders of the Class A-3FL
Certificates pursuant to Section 4.01(c).
(h) It is hereby acknowledged that amounts on deposit in the Class
A-4FC Sub-Account as of any Distribution Date and available for such purposes
shall be applied to make any payments to the Class A-4FC Swap Counterparty
pursuant to, and subject to the limitations and conditions set forth in, Section
4.07(d), prior to being applied to make distributions to the Holders of the
Class A-4FC Certificates pursuant to Section 4.01(c)
SECTION 3.06. Investment of Funds in the Servicing Accounts, the
Reserve Accounts, the Collection Account, the
Distribution Account, the Floating Rate Account, the
Loan Combination Custodial Accounts, the Additional
Interest Account, the Gain-on-Sale Reserve Account and
the REO Accounts.
(a) The Master Servicer may direct in writing any depository
institution maintaining a Servicing Account, a Reserve Account, the Collection
Account or a Loan Combination Custodial Account (each, for purposes of this
Section 3.06, an "Investment Account"), the Special Servicer may direct in
writing any depository institution maintaining an REO Account (also, for
purposes of this Section 3.06, an "Investment Account"), and the Certificate
Administrator may direct in writing any depository institution maintaining the
Distribution Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account, the Additional Interest Account and the Interest Reserve Account (each
also, for purposes of this Section 3.06, an "Investment Account"), to invest, or
if it is such depository institution, may itself invest, the funds held therein
only in one or more Permitted Investments bearing interest or sold at a
discount, and maturing, unless payable on demand, no later than the Business Day
immediately preceding the next succeeding date on which such funds are required
to be withdrawn from such account pursuant to this Agreement. All such Permitted
Investments shall be held to maturity, unless payable on demand. Any investment
of funds in an Investment Account shall be made in the name of the Trustee (in
its capacity as such). The Master Servicer (with respect to Permitted
Investments of amounts in the Servicing Accounts, the Reserve Accounts, the
Collection Account or the Loan Combination Custodial Accounts) and the Special
Servicer (with respect to Permitted Investments of amounts in the REO Accounts),
on behalf of the Trustee, and the Certificate Administrator (with respect to
Permitted Investments of amounts in the Distribution Account, the Floating Rate
Account, the Gain-on-Sale Reserve Account, the Additional Interest Account and
the Interest Reserve Account) shall (and in the case of the Master Servicer and
the Special Servicer, the Trustee hereby designates the Master Servicer and the
Special Servicer, as applicable, as the person that shall) maintain continuous
possession of any Permitted Investment that is either (i) a "certificated
security," as such term is defined in the UCC, or (ii) other property in which a
secured party may perfect its security interest by possession under the UCC or
any other applicable law. Possession of any such Permitted Investment by the
Master Servicer, the Special Servicer or the Certificate Administrator shall
constitute possession by the Trustee, as secured party, for purposes of Section
9-313 of the UCC and any other applicable law. If amounts on deposit in an
Investment Account are at any time invested in a Permitted Investment payable on
demand, the Master Servicer (in the case of the Collection Account, the Loan
Combination Custodial Accounts, the Servicing Accounts and the Reserve
Accounts), the Special Servicer (in the case of the REO Accounts) or the
Certificate Administrator (in the case of the Distribution Account, the Floating
Rate Account, the Gain-on-Sale Reserve Account, the Additional Interest Account
and the Interest Reserve Account) shall:
(i) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the lesser
of (1) all amounts then payable thereunder and (2) the amount required to
be withdrawn on such date; and
(ii) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer, the Special Servicer or the
Certificate Administrator, as the case may be, that such Permitted
Investment would not constitute a Permitted Investment in respect of funds
thereafter on deposit in the Investment Account.
(b) Whether or not the Master Servicer directs the investment of
funds in any of the Servicing Accounts, the Reserve Accounts, the Collection
Account or the Loan Combination Custodial Accounts, interest and investment
income realized on funds deposited therein, to the extent of the related Net
Investment Earnings, if any, for each Investment Period and, in the case of a
Reserve Account or a Servicing Account, to the extent not otherwise payable to
the related Mortgagor in accordance with applicable law or the related Mortgage
Loan documents, shall be for the sole and exclusive benefit of the Master
Servicer and shall be subject to its withdrawal in accordance with Section
3.03(a), 3.03(f) or 3.05(a), as applicable. Whether or not the Special Servicer
directs the investment of funds in any REO Account, interest and investment
income realized on funds deposited therein, to the extent of the Net Investment
Earnings, if any, for each Investment Period, shall be for the sole and
exclusive benefit of the Special Servicer and shall be subject to its withdrawal
in accordance with Section 3.16(b). Whether or not the Certificate Administrator
directs the investment of funds in the Distribution Account, the Floating Rate
Account, the Gain-on-Sale Reserve Account, the Additional Interest Account and
the Interest Reserve Account, interest and investment income realized on funds
deposited therein, to the extent of the Net Investment Earnings, if any, for
each Investment Period, shall be for the sole and exclusive benefit of the
Certificate Administrator and shall be subject to its withdrawal in accordance
with Section 3.05(b) or 3.05(f), as applicable. If any loss shall be incurred in
respect of any Permitted Investment on deposit in any Investment Account, the
Master Servicer (in the case of the Servicing Accounts, the Reserve Accounts,
the Collection Account and the Loan Combination Custodial Accounts, excluding
any accounts containing amounts invested solely for the benefit of, and at the
direction of, the Mortgagor under the terms of the Mortgage Loan or applicable
law), the Special Servicer (in the case of the REO Accounts) and the Certificate
Administrator (in the case of the Distribution Account, the Floating Rate
Account, the Gain-on-Sale Reserve Account, the Additional Interest Account and
the Interest Reserve Account) shall promptly deposit therein from its own funds,
without right of reimbursement, no later than the end of the Investment Period
during which such loss was incurred, the amount of the Net Investment Loss, if
any, for such Investment Period. Notwithstanding any of the foregoing, no party
shall be required under this Agreement to deposit any loss on a deposit of funds
in an Investment Account if such loss is incurred solely as a result of the
insolvency of the federal or state chartered depository institution or trust
company with which such deposit was maintained so long as such depository
institution or trust company satisfied the conditions set forth in the
definition of "Eligible Account" at the time such deposit was made and also as
of a date no earlier than 30 days prior to the insolvency.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment and the Special Servicer or the Master Servicer fails to deposit any
losses with respect to such Permitted Investment pursuant to Section 3.06(b),
the Certificate Administrator may and, subject to Section 8.02, upon the request
of Holders of Certificates entitled to not less than 25% of the Voting Rights
allocated to any Class, shall take such action as may be appropriate to enforce
such payment or performance, including the institution and prosecution of
appropriate proceedings.
(d) Notwithstanding the investment of funds held in any Investment
Account, for purposes of the calculations hereunder, including, without
limitation, the calculation of the Available Distribution Amount, the amounts so
invested shall be deemed to remain on deposit in such Investment Account.
SECTION 3.07. Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage.
(a) The Master Servicer, with respect to each of the Serviced
Mortgage Loans including Specially Serviced Mortgage Loans, and the Special
Servicer, with respect to Administered REO Properties, shall use efforts,
consistent with the Servicing Standard, to cause the Mortgagor to maintain, to
the extent required by the terms of the related Mortgage Loan documents, or if
the Mortgagor does not maintain, shall itself maintain for each Mortgaged
Property all insurance coverage as is required under the related Mortgage;
provided that if and to the extent that any such Mortgage permits the holder
thereof any discretion (by way of consent, approval or otherwise) as to the
insurance coverage that the related Mortgagor is required to maintain, the
Master Servicer shall exercise such discretion in a manner consistent with the
Servicing Standard and subject to the terms of this Section 3.07; and provided,
further that, if and to the extent that a Mortgage so permits, the related
Mortgagor shall be required to exercise its reasonable efforts to obtain the
required insurance coverage from Qualified Insurers and required insurance
coverage obtained by the Master Servicer shall be from Qualified Insurers. The
cost of any such insurance coverage obtained by either the Master Servicer or
the Special Servicer shall be a Servicing Advance to be paid by the Master
Servicer pursuant to Section 3.03. If not required under the terms of the
Mortgage or the Mortgage Loan documents, the Special Servicer may require that
earthquake insurance be secured for one or more Serviced Mortgaged Properties at
the expense of the Trust Fund (including the Special Servicer's costs and
expenses incurred in obtaining such insurance). Subject to Section 3.17(a), the
Special Servicer shall also cause to be maintained for each Administered REO
Property no less insurance coverage than was required of the Mortgagor under the
related Mortgage as of the Closing Date; provided that all such insurance shall
be obtained from Qualified Insurers. All such insurance policies maintained by
the Master Servicer or the Special Servicer (i) shall contain (if they insure
against loss to property and do not relate to an REO Property) a "standard"
mortgagee clause, with loss payable to the Trustee or the Master Servicer on
behalf of the Trustee (and, in the case of a Loan Combination, the related
Non-Trust Noteholder(s)) (in the case of insurance maintained in respect of
Mortgage Loans); (ii) shall be in the name of the Special Servicer (in the case
of insurance maintained in respect of Administered REO Properties), on behalf of
the Trustee; (iii) shall be non-cancelable without 30 days' prior written notice
to the insured party; (iv) shall include coverage in an amount not less than the
lesser of (x) the full replacement cost of the improvements securing a Serviced
Mortgaged Property or Administered REO Property, as applicable, or (y) the
outstanding principal balance owing on the related Serviced Mortgage Loan or
Serviced REO Loan, as applicable, and in any event, the amount necessary to
avoid the operation of any co-insurance provisions; (v) shall include a
replacement cost endorsement providing no deduction for depreciation (unless
such endorsement is not permitted under the related Mortgage Loan documents);
(vi) shall include such other insurance, including, to the extent available at
commercially reasonable rates, earthquake insurance, where applicable, as
required under the applicable Mortgage or other Mortgage Loan documents; (vii)
to the extent that the Mortgage or other Mortgage Loan documents specifically
require terrorism coverage or the Mortgage requires the related Mortgagor to
carry "all risk" coverage, shall include terrorism coverage, unless the failure
to obtain such terrorism coverage constitutes an Acceptable Insurance Default;
and (viii) in each case such insurance shall be issued by an insurer authorized
under applicable law to issue such insurance. Notwithstanding the foregoing, the
Master Servicer or the Special Servicer shall not be required to obtain, and
shall not be in default hereunder for failing to obtain, any insurance coverage
that was previously required of the Mortgagor under the related Mortgage if (a)
such insurance is not available at any rate; (b) such insurance is not available
from a Qualified Insurer (provided that the Master Servicer or the Special
Servicer, as applicable, shall obtain such insurance from the next highest rated
insurer offering such insurance at commercially reasonable rates; provided,
further, that in making determinations as to the availability of insurance at
commercially reasonable rates or otherwise, the Master Servicer shall to the
extent consistent with the Servicing Standard, be entitled to rely, at its own
expense, on insurance consultants in making such determination); (c) subject to
the prior approval of the Controlling Class Representative (which approval is
deemed granted if not denied within 10 Business Days after its receipt of the
Master Servicer's or the Special Servicer's request for such approval), such
insurance is not available at commercially reasonable rates and, as determined
by the Master Servicer or the Special Servicer following due inquiry conducted
in a manner consistent with the Servicing Standard, the subject hazards are not
commonly insured against by prudent owners of similar real properties in similar
locales (but only by reference to such insurance that has been obtained by such
owners at the then current market rates); or (d) the Trustee does not have an
insurable interest in the related Mortgaged Property or Administered REO
Property. Any amounts collected by the Master Servicer or the Special Servicer
under any such policies (other than amounts to be applied to the restoration or
repair of the related Serviced Mortgaged Property or Administered REO Property
or amounts to be released to the related Mortgagor, in each case subject to the
rights of any tenants and ground lessors, as the case may be, and in each case
in accordance with the terms of the related Mortgage and the Servicing Standard)
shall be deposited in the Collection Account, subject to withdrawal pursuant to
Section 3.05(a), in the case of amounts received in respect of a Serviced
Mortgage Loan (other than a Loan Combination), or in the related Loan
Combination Custodial Account, subject to withdrawal pursuant to Section
3.05(e), in the case of amounts received in respect of a Loan Combination, or in
the applicable REO Account, subject to withdrawal pursuant to Section 3.16(c),
in the case of amounts received in respect of an Administered REO Property. Any
cost incurred by the Master Servicer or the Special Servicer in maintaining any
such insurance shall not, for purposes hereof, including, without limitation,
calculating monthly distributions to Certificateholders, be added to the unpaid
principal balance of the related Serviced Mortgage Loan, notwithstanding that
the terms of such Serviced Mortgage Loan so permit.
Notwithstanding the foregoing, with respect to the Serviced Mortgage
Loans which either (x) require the Mortgagor to maintain "all risk" property
insurance (and do not expressly permit an exclusion for terrorism) or (y)
contain provisions generally requiring the applicable Mortgagor to maintain
insurance in types and against such risks as the holder of such Serviced
Mortgage Loan reasonably requires from time to time in order to protect its
interests, the Master Servicer will be required to (A) use efforts consistent
with the Servicing Standard, to monitor whether the insurance policies for the
related Mortgaged Property contain Additional Exclusions, (B) request the
Mortgagor to either purchase insurance against the risks specified in the
Additional Exclusions or provide an explanation as to its reasons for failing to
purchase such insurance and (C) notify the Special Servicer if any insurance
policy contains Additional Exclusions or if any Mortgagor fails to purchase the
insurance requested to be purchased by the Master Servicer pursuant to clause
(B) above. If the Special Servicer determines in accordance with the Servicing
Standard that such failure is not an Acceptable Insurance Default, the Special
Servicer shall notify the Master Servicer and the Master Servicer shall cause
such insurance to be maintained. Furthermore, the Special Servicer shall inform
the Rating Agencies as to such conclusions for those Serviced Mortgage Loans
that (i) have one of the 10 highest outstanding Stated Principal Balances of all
of the Mortgage Loans then included in the Trust Fund or (ii) comprise more than
5% of the outstanding Stated Principal Balance of the Mortgage Loans then
included in the Trust Fund (and, if a Loan Combination satisfies clause (i)
and/or clause (ii), the Special Servicer shall also inform the related Non-Trust
Noteholder(s) as to such conclusion). During the period that the Special
Servicer is evaluating the availability of such insurance, the Master Servicer
will not be liable for any loss related to its failure to require the Mortgagor
to maintain such insurance and will not be in default of its obligations as a
result of such failure and the Master Servicer will not itself maintain such
insurance or cause such insurance to be maintained.
(b) If the Master Servicer or the Special Servicer shall obtain and
maintain, or cause to be obtained and maintained, a blanket policy or master
force-placed policy insuring against hazard losses on all of the Serviced
Mortgage Loans and/or Serviced REO Properties that it is required to service and
administer, then, to the extent such policy (i) is obtained from a Qualified
Insurer and (ii) provides protection equivalent to the individual policies
otherwise required, the Master Servicer or the Special Servicer, as the case may
be, shall conclusively be deemed to have satisfied its obligation to cause
hazard insurance to be maintained on the related Serviced Mortgaged Properties
and/or Administered REO Properties. In the event that the Special Servicer
causes any Administered REO Property to be covered by such blanket policy, the
incremental cost of such insurance applicable to such Administered REO Property
(other than any minimum or standby premium payable for such policy whether or
not any Administered REO Property is covered thereby) shall be paid by the
Master Servicer as a Servicing Advance pursuant to Section 3.03. Such blanket
policy or master force-placed policy may contain a deductible clause (not in
excess of a customary amount), in which case the Master Servicer or the Special
Servicer, as appropriate, shall, if there shall not have been maintained on the
related Serviced Mortgaged Property or Administered REO Property a hazard
insurance policy complying with the requirements of Section 3.07(a), and there
shall have been one or more losses that would have been covered by such policy,
promptly deposit into the Collection Account (or, in the case of a Loan
Combination Mortgaged Property or any Loan Combination REO Property, into the
related Loan Combination Custodial Account) from its own funds the amount not
otherwise payable under the blanket policy or master force-placed policy because
of such deductible clause to the extent the amount of such deductible exceeds
the deductible permitted under the related Mortgage Loan documents (or if the
related Mortgage Loan documents are silent regarding a permitted deductible, a
deductible for an individual policy that is consistent with the Servicing
Standard). The Master Servicer or the Special Servicer, as appropriate, shall
prepare and present, on behalf of itself, the Trustee and the Certificateholders
(and, in the case of a Loan Combination, the related Non-Trust Noteholder(s)),
claims under any such blanket policy or master force-placed policy in a timely
fashion in accordance with the terms of such policy.
(c) Each of the Master Servicer and the Special Servicer shall at
all times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement in which Specially
Serviced Mortgage Loans or Administered REO Properties are part of the Trust
Fund) keep in force a fidelity bond with Qualified Insurers, such fidelity bond
to be in such form and amount as would permit it to be a qualified FNMA or
FHLMC, whichever is greater, seller-servicer of multifamily mortgage loans, or
in such other form and amount as would not cause an Adverse Rating Event (as
evidenced in writing from each Rating Agency). Each of the Master Servicer and
the Special Servicer shall be deemed to have complied with the foregoing
provision if an Affiliate thereof has such fidelity bond coverage and, by the
terms of such fidelity bond, the coverage afforded thereunder extends to the
Master Servicer or the Special Servicer, as the case may be.
Each of the Master Servicer and the Special Servicer shall at all
times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement in which Specially
Serviced Mortgage Loans and/or Administered REO Properties exist as part of the
Trust Fund) also keep in force with Qualified Insurers, a policy or policies of
insurance covering loss occasioned by the errors and omissions of its officers
and employees in connection with its servicing obligations hereunder, which
policy or policies shall be in such form and amount as would permit it to be a
qualified FNMA seller-servicer of multifamily mortgage loans, or in such other
form and amount as would not result in an Adverse Rating Event (as evidenced in
writing from each Rating Agency). Each of the Master Servicer and the Special
Servicer shall be deemed to have complied with the foregoing provisions if an
Affiliate thereof has such insurance and, by the terms of such policy or
policies, the coverage afforded thereunder extends to the Master Servicer or the
Special Servicer, as the case may be. Any such errors and omissions policy shall
provide for 10 days' written notice to the Trustee prior to cancellation. The
Master Servicer and the Special Servicer shall each cause the Trustee to be an
additional loss payee on any policy currently in place or procured pursuant to
the requirements of this Section 3.07(c).
For so long as the long-term debt obligations of the Master Servicer
or Special Servicer, as the case may be (or in the case of the initial Master
Servicer and Special Servicer, their respective direct parent), are rated at
least "A" or the equivalent by all of the Rating Agencies (or such lower rating
as will not result in an Adverse Rating Event, as evidenced in writing by the
Rating Agencies), such Person may self-insure with respect to the risks
described in this Section 3.07.
(d) Within 90 days of the Closing Date, with respect to each of the
Serviced Mortgage Loans identified on Exhibit J as being covered by an
environmental insurance policy, the Master Servicer (or the Special Servicer in
the case of a Specially Serviced Mortgage Loan) shall notify the insurer under
such environmental insurance policy and take all other action necessary for the
Certificate Administrator, on behalf of the Certificateholders (and in the case
of a Loan Combination, the related Non-Trust Noteholder(s)), to be an insured
(and for the Master Servicer (or the Special Servicer in the case of a Specially
Serviced Mortgage Loan), on behalf of the Trust Fund (and in the case of a Loan
Combination, the related Non-Trust Noteholder(s)), to make claims) under such
environmental insurance policy. In the event that the Master Servicer (or the
Special Servicer in the case of a Specially Serviced Mortgage Loan) has actual
knowledge of any event (an "Insured Environmental Event") giving rise to a claim
under any environmental insurance policy in respect of any Serviced Mortgage
Loan covered thereby, the Master Servicer (or the Special Servicer in the case
of a Specially Serviced Mortgage Loan) shall, in accordance with the terms of
such environmental insurance policy and the Servicing Standard, timely make a
claim thereunder with the appropriate insurer and shall take such other actions
in accordance with the Servicing Standard which are necessary under such
environmental insurance policy in order to realize the full value thereof for
the benefit of the Certificateholders (and in the case of a Loan Combination,
the related Non-Trust Noteholder(s)). Any legal fees, premiums or other
out-of-pocket costs incurred in connection with any such claim under an
environmental insurance policy shall be paid by the Master Servicer and shall be
reimbursable to it as a Servicing Advance. With respect to each environmental
insurance policy that relates to one or more Serviced Mortgage Loans, the Master
Servicer shall review and familiarize itself with the terms and conditions
relating to enforcement of claims and shall monitor the dates by which any claim
must be made or any action must be taken under such policy to realize the full
value thereof for the benefit of the Certificateholders (and in the case of a
Loan Combination, the related Non-Trust Noteholder(s)) in the event the Master
Servicer has actual knowledge of an Insured Environmental Event giving rise to a
claim under such policy.
In the event that the Master Servicer (or the Special Servicer in
the case of a Specially Serviced Mortgage Loan) receives notice of any
termination of any environmental insurance policy that relates to one or more
Serviced Mortgage Loans, the Master Servicer (or the Special Servicer in the
case of a Specially Serviced Mortgage Loan) shall, within five Business Days
after receipt of such notice, notify the Special Servicer, the Controlling Class
Representative, the Rating Agencies, the Certificate Administrator, the Trustee
and, in the case of a Loan Combination, the related Non-Trust Noteholder(s) of
such termination in writing. Upon receipt of such notice, the Master Servicer
with respect to non-Specially Serviced Mortgage Loans, and the Special Servicer
with respect to Specially Serviced Mortgage Loans, shall address such
termination in accordance with Section 3.07(a) in the same manner as it would
the termination of any other Insurance Policy required under the related
Mortgage Loan documents. Any legal fees, premiums or other out-of-pocket costs
incurred in connection with a resolution of such termination of an environmental
insurance policy shall be paid by the Master Servicer and shall be reimbursable
to it as a Servicing Advance unless such Servicing Advance is determined to be a
Nonrecoverable Advance.
SECTION 3.08. Enforcement of Alienation Clauses.
(a) The Special Servicer (with respect to all Mortgage Loans), on
behalf of the Trustee as the mortgagee of record, shall enforce any
"due-on-sale" or "due-on-encumbrance" clauses and any other restrictions
contained in the related Mortgage or other related loan document on transfers or
further encumbrances of the related Mortgaged Property and on transfers of
interests in the related Mortgagor, unless the Special Servicer has (i)
determined, in its reasonable judgment (exercised in accordance with the
Servicing Standard and which, for the avoidance of doubt, would include a
determination that any required conditions to a transfer have been met), that
waiver of the lender's rights under such clauses or the waiver of such other
restrictions, as applicable, would be in accordance with the Servicing Standard
and (ii) complied with the applicable requirements, if any, of Section 6.11 and
Section 6.12; provided that:
(i) subject to the related Mortgage Loan documents and applicable
law, the Special Servicer shall not waive any right it has, or grant any
consent it is otherwise entitled to withhold, in accordance with any
related "due-on-encumbrance" clause under any Serviced Trust Mortgage Loan
that is a Significant Mortgage Loan, or if, taking into account existing
debt on the subject Mortgaged Property (including any related Non-Trust
Loan(s)) and the proposed additional debt as if such total debt were a
single mortgage loan, the Loan-to-Value Ratio is equal to or greater than
85% or the Debt Service Coverage Ratio is equal to or less than 1.2x,
unless it receives prior written confirmation from each Rating Agency that
such action would not result in an Adverse Rating Event;
(ii) if the affected Serviced Trust Mortgage Loan is a Significant
Mortgage Loan, then, subject to the related Mortgage Loan documents and
applicable law, the Special Servicer shall not waive any right it has, or
grant any consent it is otherwise entitled to withhold, in accordance with
any related "due-on-sale" clause under any Serviced Trust Mortgage Loan
until it has received written confirmation from each Rating Agency that
such action would not result in an Adverse Rating Event; provided that,
with respect to a waiver of a due-on-sale provision, in the event that
such Serviced Mortgage Loan is not a Significant Mortgage Loan, and the
Mortgage Loan documents contain a requirement for Rating Agency approval,
the Special Servicer, subject to Section 6.11 and Section 6.12 may waive
such requirement without Rating Agency approval in accordance with the
Servicing Standard;
(iii) subject to the related Mortgage Loan documents and applicable
law, the Special Servicer shall not waive any right it has, or grant any
consent it is otherwise entitled to withhold, in accordance with any
related "due-on-sale" or "due-on-encumbrance" clause under any Serviced
Mortgage Loan, or approve the assumption of any Mortgage Loan, unless in
any such case, all associated costs and expenses are covered without any
expense to the Trust (it being understood and agreed that, except as
expressly provided herein, the Special Servicer shall not be obligated to
cover or assume any such costs or expenses); and
(iv) the Special Servicer shall not (to the extent that it is within
the control thereof to prohibit such event) consent to the transfer of any
Serviced Mortgaged Property that secures a Crossed Loan Group unless (i)
all of the Serviced Mortgaged Properties securing such Crossed Loan Group
are transferred simultaneously by the respective Mortgagor or (ii) it
obtains the consent of the Controlling Class Representative, which consent
shall be deemed given if not denied in writing within 10 Business Days
(or, if the Controlling Class Representative is entitled to object
pursuant to Section 6.11, 15 Business Days, which 15 Business Days shall
include the five Business Days specified in the proviso at the end of the
first paragraph of Section 6.11) of receipt by the Controlling Class
Representative of written notice of such action and all reasonably
requested information related thereto (or, if no information is requested,
within 10 Business Days (or, if applicable, 15 Business Days) of receipt
of written notice).
If, in connection with an assumption of any Serviced Mortgage Loan,
the applicable Mortgage Loan Seller bears the costs and expenses associated with
such assumption in accordance with the terms of the applicable Mortgage Loan
Purchase Agreement, any costs and expenses subsequently recovered by the Master
Servicer from the related Mortgagor in respect of such assumption shall be
promptly remitted by the Master Servicer to the applicable Mortgage Loan Seller.
In the case of any Serviced Mortgage Loan, the Master Servicer and
the Special Servicer shall each provide the other with all such information as
each may reasonably request in order to perform its duties under this section.
In connection with any permitted assumption of any Serviced Mortgage
Loan or waiver of a "due-on-sale" or "due-on-encumbrance" clause thereunder, the
Special Servicer shall prepare all documents necessary and appropriate for such
purposes and shall coordinate with the related Mortgagor for the due execution
and delivery of such documents. The Special Servicer shall promptly (i) notify
in writing the Master Servicer of any assumption of any Serviced Mortgage Loan
or waiver of a "due-on-sale" or due-on-encumbrance" clause agreed with the
related Mortgagor and (ii) deliver to the Master Servicer copies of all
documents executed and delivered by the related Mortgagor in connection
therewith.
(b) Notwithstanding any other provisions of this Section 3.08, the
Special Servicer with respect to all Mortgage Loans may grant, without any
Rating Agency confirmation as provided in paragraph (a) above, a Mortgagor's
request for consent to subject the related Mortgaged Property to an easement,
right-of-way or other similar agreement for utilities, access, parking, public
improvements or another purpose, and may consent to subordination of the related
Serviced Mortgage Loan to such easement, right-of-way or other similar agreement
provided the Special Servicer shall have determined in accordance with the
Servicing Standard that such easement, right-of-way or other similar agreement
shall not materially interfere with the then-current use of the related
Mortgaged Property, the security intended to be provided by such Mortgage or the
related Mortgagor's ability to repay the Serviced Mortgage Loan, or materially
and adversely affect the value of such Mortgaged Property, or cause the Serviced
Mortgage Loan to cease to be a qualified mortgage loan for REMIC purposes.
SECTION 3.09. Realization upon Defaulted Mortgage Loans; Required
Appraisals.
(a) The Special Servicer shall, subject to Sections 3.09(b) through
3.09(d), Section 6.11 and Section 6.12, exercise reasonable efforts, consistent
with the Servicing Standard, to foreclose upon or exercise any power of sale
contained in the related Mortgage, obtain a deed-in-lieu of foreclosure, or
otherwise acquire title to the corresponding Mortgaged Property by operation of
law or otherwise in relation to such of the Serviced Mortgage Loans as come into
and continue in default and as to which no satisfactory arrangements can be made
for collection of delinquent payments, including, without limitation, pursuant
to Section 3.20. Subject to the second paragraph of Section 3.03(c), the Master
Servicer shall advance all costs and expenses (other than costs or expenses that
would, if incurred, constitute a Nonrecoverable Servicing Advance) incurred by
the Special Servicer in any such proceedings, and shall be entitled to
reimbursement therefor as provided in Section 3.05(a) or Section 3.05(e), as
applicable. Nothing contained in this Section 3.09 shall be construed so as to
require the Special Servicer, on behalf of the Trust Fund (and, in the case of a
Loan Combination Mortgaged Property, the related Non-Trust Noteholder(s)), to
make a bid on any Mortgaged Property at a foreclosure sale or similar proceeding
that is in excess of the fair market value of such property, as determined by
the Special Servicer in its reasonable judgment (exercised in accordance with
the Servicing Standard) taking into account, as applicable, among other factors,
the period and amount of any delinquency on the affected Serviced Mortgage Loan,
the occupancy level and physical condition of the Mortgaged Property or REO
Property, the state of the local economy, the obligation to dispose of any REO
Property within the time period specified in Section 3.16(a) and the results of
any appraisal obtained pursuant to the following sentence, all such bids to be
made in a manner consistent with the Servicing Standard. If and when the Master
Servicer or the Special Servicer deems it necessary and prudent for purposes of
establishing the fair market value of any Mortgaged Property securing a
Defaulted Mortgage Loan, whether for purposes of bidding at foreclosure or
otherwise, it may, at the expense of the Trust Fund (and, in the case of a Loan
Combination, at the expense of the related Non-Trust Noteholder(s)), have an
appraisal performed with respect to such property by an Independent Appraiser or
other expert in real estate matters; which appraisal shall take into account, as
applicable, among other factors, the period and amount of any delinquency on the
affected Serviced Mortgage Loan, the occupancy level and physical condition of
the related Mortgaged Property or REO Property, the state of the local economy
and the obligation to dispose of any REO Property within the time period
specified in Section 3.16(a), including without limitation, any environmental,
engineering or other third party reports available, and other factors that a
prudent real estate appraiser would consider.
With respect to each Required Appraisal Mortgage Loan, the Special
Servicer will be required to use commercially reasonable efforts to obtain a
Required Appraisal (or with respect to any Mortgage Loan with an outstanding
principal balance, net of related unreimbursed advances of principal, of less
than $2,000,000, at the Special Servicer's option, an internal valuation
performed by the Special Servicer) within 60 days of a Serviced Mortgage Loan
becoming a Required Appraisal Mortgage Loan (unless an appraisal meeting the
requirements of a Required Appraisal was obtained for such Required Appraisal
Mortgage Loan within the prior 12 months and the Special Servicer has no actual
knowledge of a material adverse change in the condition of the related Mortgaged
Property in which case such appraisal may be a letter update of the Required
Appraisal) and thereafter shall obtain a Required Appraisal (or with respect to
any Serviced Mortgage Loan with an outstanding principal balance, net of related
unreimbursed Advances of principal, of less than $2,000,000, an internal
valuation performed by the Special Servicer) once every 12 months (or sooner if
the Special Servicer has actual knowledge of a material adverse change in the
condition of the related Mortgaged Property) if such Serviced Mortgage Loan
remains a Required Appraisal Mortgage Loan. Following its receipt of such
Required Appraisal or letter update or the completion of its internal valuation,
the Special Servicer may, but shall not be required to, reduce the Appraised
Value of the related Mortgaged Property based on its review of the Required
Appraisal (or letter update or internal valuation) and any other information
that the Special Servicer, consistent with the Servicing Standard, deems
appropriate. The Special Servicer shall deliver a copy of each Required
Appraisal (or letter update or internal valuation) to the Master Servicer, the
Controlling Class Representative and the Trustee within 10 Business Days of
obtaining or performing such Required Appraisal (or letter update or internal
valuation). Subject to the second paragraph of Section 3.03(c), the Master
Servicer shall advance the cost of such Required Appraisal; provided, however,
that such expense will be subject to reimbursement to the Master Servicer as a
Servicing Advance out of the Collection Account pursuant to Section 3.05(a)(vi)
and 3.05(a)(vii) or, in the case of a Loan Combination, out of the related Loan
Combination Custodial Account pursuant to Section 3.05(e)(vi) and 3.05(e)(vii)
unless such Servicing Advance would be a Nonrecoverable Advance, in which case
such expense shall be an expense of the Trust.
(b) Notwithstanding any other provision of this Agreement, no
Serviced Mortgaged Property shall be acquired by the Special Servicer on behalf
of the Certificateholders (and, in the case of a Loan Combination Mortgaged
Property, the related Non-Trust Noteholder) under such circumstances, in such
manner or pursuant to such terms as would, in the reasonable judgment of the
Special Servicer (exercised in accordance with the Servicing Standard), (i)
cause such Mortgaged Property to fail to qualify as "foreclosure property"
within the meaning of Section 860G(a)(8) of the Code (unless the portion of such
Mortgaged Property that is not treated as "foreclosure property" and that is
held by REMIC I at any given time constitutes not more than a de minimis amount
of the assets of REMIC I, within the meaning of Treasury Regulations Section
1.860D-1(b)(3)(i) and (ii)), or (ii) except as permitted by Section 3.17(a),
subject the Trust Fund to the imposition of any federal income taxes under the
Code. Subject to the foregoing, however, a Serviced Mortgaged Property may be
acquired through a single member limited liability company if the Special
Servicer determines that such an action is appropriate to protect the Trust
(and, in the case of a Loan Combination Mortgaged Property, the related
Non-Trust Noteholder(s)) from potential liability. The Special Servicer shall
not acquire any personal property pursuant to this Section 3.09 unless either:
(i) such personal property is incident to real property (within the
meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of Counsel
(the cost of which may be withdrawn from the Collection Account pursuant
to Section 3.05(a)) to the effect that the holding of such personal
property as part of the Trust Fund will not cause the imposition of a tax
on either, REMIC I or REMIC II under the REMIC Provisions or cause either
of, REMIC I or REMIC II to fail to qualify as a REMIC at any time that any
Certificate is outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
neither the Master Servicer nor the Special Servicer shall, on behalf of the
Trust Fund (and, in the case of a Loan Combination, on behalf of the related
Non-Trust Noteholder(s)), obtain title to a Serviced Mortgaged Property by
foreclosure, deed in lieu of foreclosure or otherwise, or take any other action
with respect to any Serviced Mortgaged Property, if, as a result of any such
action, the Trustee, on behalf of the Certificateholders (and, in the case of a
Loan Combination Mortgaged Property, on behalf of the related Non-Trust
Noteholder(s)), could, in the reasonable judgment of the Master Servicer or the
Special Servicer, as the case may be, made in accordance with the Servicing
Standard, be considered to hold title to, to be a "mortgagee-in-possession" of,
or to be an "owner" or "operator" of such Serviced Mortgaged Property within the
meaning of CERCLA or any comparable law (a "potentially responsible party"),
unless the Special Servicer has determined (as evidenced by an Officer's
Certificate to such effect delivered to the Trustee (and, in the case of a Loan
Combination Mortgaged Property, the related Non-Trust Noteholder(s)) that shall
specify all of the bases for such determination), in accordance with the
Servicing Standard, and based on an Environmental Assessment of such Serviced
Mortgaged Property performed by an Independent Person who regularly conducts
Environmental Assessments and performed within six months prior to any such
acquisition of title or other action (a copy of which Environmental Assessment
shall be delivered to the Trustee, the Controlling Class Representative, the
Master Servicer and, in the case of a Loan Combination Mortgaged Property, to
the related Non-Trust Noteholder(s)), that:
(i) the Serviced Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that it would (taking into
account the coverage provided under any related environmental insurance
policy) maximize the recovery to the Certificateholders (and, in the case
of a Loan Combination Mortgaged Property, on behalf of the related
Non-Trust Noteholder(s)) on a present value basis (the relevant
discounting of anticipated collections that will be distributable to
Certificateholders (and, in the case of a Loan Combination Mortgaged
Property, on behalf of the related Non-Trust Noteholder(s)) to be
performed at the related Net Mortgage Rate) to acquire title to or
possession of the Mortgaged Property and to take such actions as are
necessary to bring the Serviced Mortgaged Property into compliance
therewith in all material respects; and
(ii) there are no circumstances or conditions present at the
Serviced Mortgaged Property relating to the use, management or disposal of
Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under any
applicable environmental laws and regulations or, if such circumstances or
conditions are present for which any such action could reasonably be
expected to be required, that it would (taking into account the coverage
provided under any related environmental insurance policy) maximize the
recovery to the Certificateholders (and, in the case of a Loan Combination
Mortgaged Property, on behalf of the related Non-Trust Noteholder(s)) on a
present value basis (the relevant discounting of anticipated collections
that will be distributable to Certificateholders (and, in the case of a
Loan Combination Mortgaged Property, on behalf of the related Non-Trust
Noteholder(s)) to be performed at the related Net Mortgage Rate) to
acquire title to or possession of the Serviced Mortgaged Property and to
take such actions with respect to the affected Serviced Mortgaged
Property.
The Special Servicer shall, in good faith, undertake reasonable
efforts to make the determination referred to in the preceding paragraph and may
conclusively rely on the Environmental Assessment referred to above in making
such determination. The cost of any such Environmental Assessment shall be
covered by, and reimbursable as, a Servicing Advance; and if any such
Environmental Assessment so warrants, the Special Servicer shall perform such
additional environmental testing as it deems necessary and prudent to determine
whether the conditions described in clauses (i) and (ii) of the preceding
paragraph have been satisfied (the cost of any such additional testing also to
be covered by, and reimbursable as, a Servicing Advance). The cost of any
remedial, corrective or other further action contemplated by clause (i) and/or
clause (ii) of the preceding paragraph shall be payable out of the Collection
Account or the applicable Loan Combination Custodial Account pursuant to Section
3.05(a) or 3.05(e) (or, in the case of a Loan Combination Mortgaged Property, to
the extent the funds in the related Loan Combination Custodial Account are
insufficient, shall be payable out of general collections from the Collection
Account.
(d) If the environmental testing contemplated by Section 3.09(c)
above establishes that any of the conditions set forth in clauses (i) and (ii)
thereof has not been satisfied with respect to any Serviced Mortgaged Property
securing a Defaulted Mortgage Loan and there is no breach of a representation or
warranty requiring repurchase under the applicable Mortgage Loan Purchase
Agreement, the Special Servicer shall take such action as is in accordance with
the Servicing Standard (other than proceeding against the Serviced Mortgaged
Property). At such time as it deems appropriate, the Special Servicer may, on
behalf of the Trust (and, if a Loan Combination is involved, the related
Non-Trust Noteholder(s)), if and as applicable, release all or a portion of such
Serviced Mortgaged Property from the lien of the related Mortgage; provided
that, if such Serviced Mortgage Loan (or such Loan Combination, if applicable)
has a then outstanding principal balance of greater than $1 million, then prior
to the release of all or a portion of the related Mortgaged Property from the
lien of the related Mortgage, (i) the Special Servicer shall have notified the
Rating Agencies, the Trustee, the Certificate Administrator, the Controlling
Class Representative, the Master Servicer and, in the case of a Loan Combination
Mortgaged Property, the related Non-Trust Noteholder(s) in writing of its
intention to so release all or a portion of such Mortgaged Property and the
bases for such intention and (ii) the Certificate Administrator shall have
notified the Certificateholders in writing of the Special Servicer's intention
to so release all or a portion of such Mortgaged Property.
(e) The Special Servicer shall report to the Master Servicer, the
Controlling Class Representative, the Certificate Administrator and, in the case
of a Loan Combination Mortgaged Property, the related Non-Trust Noteholder(s)
monthly in writing as to any actions taken by the Special Servicer with respect
to any Serviced Mortgaged Property that represents security for a Defaulted
Mortgage Loan as to which the environmental testing contemplated in Section
3.09(c) above has revealed that any of the conditions set forth in clauses (i)
and (ii) thereof has not been satisfied, in each case until the earlier to occur
of satisfaction of all such conditions and release of the lien of the related
Mortgage on such Serviced Mortgaged Property.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, with respect to any Specially Serviced
Mortgage Loan, the advisability of seeking to obtain a deficiency judgment if
the state in which the related Mortgaged Property is located and the terms of
the Mortgage Loan permit such an action and shall, in accordance with the
Servicing Standard, seek such deficiency judgment if it deems advisable.
(g) Annually in each January, the Special Servicer shall 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 Loan Combination 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 Certificate Administrator.
(h) The Special Servicer shall maintain accurate records, prepared
by a Servicing Officer, of each Final Recovery Determination in respect of any
Serviced Mortgage Loan or Administered REO Property and the basis thereof. Each
Final Recovery Determination shall be evidenced by an Officer's Certificate
(together with the basis and back-up documentation for the determination)
delivered to the Certificate Administrator, the Controlling Class
Representative, the Master Servicer and, in the case of any Loan Combination or
any Loan Combination REO Property, the related Non-Trust Noteholder(s) no later
than the third Business Day following such Final Recovery Determination.
(i) Upon reasonable request of the Master Servicer, the Special
Servicer shall deliver to it and the related Sub-Servicer any other information
and copies of any other documents in its possession with respect to a Specially
Serviced Mortgage Loan or the related Mortgaged Property.
SECTION 3.10. Trustee and Custodian to Cooperate; Release of
Mortgage Files.
(a) Upon the payment in full of any Serviced Trust Mortgage Loan, or
the receipt by the Master Servicer of a notification that payment in full shall
be escrowed in a manner customary for such purposes, the Master Servicer shall
promptly notify the Trustee in writing, who shall release or cause the related
Custodian to release, by a certification (which certification shall be in the
form of a Request for Release in the form of Exhibit D-1 attached hereto and
shall be accompanied by the form of a release or discharge and shall include a
statement to the effect that all amounts received or to be received in
connection with such payment which are required to be deposited in the
Collection Account pursuant to Section 3.04(a) have been or will be so
deposited) of a Servicing Officer (a copy of which certification shall be
delivered to the Special Servicer) and shall request delivery to it of the
related Mortgage File. Upon receipt of such certification and request, the
Trustee shall release, or cause any related Custodian to release, the related
Mortgage File to the Master Servicer and shall deliver to the Master Servicer
such release or discharge, duly executed. No expenses incurred in connection
with any instrument of satisfaction or deed of reconveyance shall be chargeable
to the Collection Account or the Distribution Account.
Upon the payment in full of any Non-Trust Loan, or the receipt by
the Master Servicer of a notification that payment in full shall be escrowed in
a manner customary for such purposes, the Master Servicer shall promptly notify
the related Non-Trust Noteholder in writing by a certification (which
certification shall be in the form of a Request for Release in the form of
Exhibit D-1 attached hereto and shall be accompanied by the form of a release or
discharge and shall include a statement to the effect that all amounts received
or to be received in connection with such payment which are required to be
deposited in the related Loan Combination Custodial Account pursuant to Section
3.04(h) have been or will be so deposited) of a Servicing Officer (a copy of
which certification shall be delivered to the Special Servicer) and shall
request delivery to it of the original Mortgage Note. No expenses incurred in
connection with any instrument of satisfaction or deed of reconveyance shall be
chargeable to the related Loan Combination Custodial Account, the Collection
Account or the Distribution Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Serviced Mortgage Loan, the Master Servicer or the Special
Servicer shall otherwise require any Mortgage File (or any portion thereof) (or
the original of the Mortgage Note for a Non-Trust Loan), the Trustee, upon
request of the Master Servicer and receipt from the Master Servicer of a Request
for Release in the form of Exhibit D-1 attached hereto signed by a Servicing
Officer thereof, or upon request of the Special Servicer and receipt from the
Special Servicer of a Request for Release in the form of Exhibit D-2 attached
hereto, shall release, or cause any related Custodian to release, such Mortgage
File (or portion thereof) (and, in the case of a Non-Trust Loan, the Master
Servicer shall cause the related Non-Trust Noteholder to release the Mortgage
Note for such Mortgage Loan) to the Master Servicer or the Special Servicer, as
the case may be. Upon return of such Mortgage File (or portion thereof) to the
Trustee or related Custodian, or the delivery to the Trustee of a certificate of
a Servicing Officer of the Special Servicer stating that such Mortgage Loan was
liquidated and that all amounts received or to be received in connection with
such liquidation that are required to be deposited into the Collection Account
or the applicable Loan Combination Custodial Account pursuant to Section 3.04(a)
or Section 3.04(h), as the case may be, have been or will be so deposited, or
that such Mortgage Loan has become an REO Property, a copy of the Request for
Release shall be released by the Trustee or related Custodian to the Master
Servicer or the Special Servicer, as applicable.
(c) Within seven Business Days (or within such shorter period (but
no less than three Business Days) as execution and delivery can reasonably be
accomplished if the Special Servicer notifies the Trustee of an exigency) of the
Special Servicer's request therefor, the Trustee shall execute and deliver to
the Special Servicer (or the Special Servicer may execute and deliver in the
name of the Trustee] (on behalf of the Certificateholders and, in the case of a
Loan Combination Mortgaged Property, the related Non-Trust Noteholder(s)) based
on a limited power of attorney issued in favor of the Special Servicer pursuant
to Section 3.01(b)), in the form supplied to the Trustee/Certificate
Administrator, any court pleadings, requests for trustee's sale or other
documents stated by the Special Servicer to be reasonably necessary to the
foreclosure or trustee's sale in respect of a Serviced Mortgaged Property or
Administered REO Property or to any legal action brought to obtain judgment
against any Mortgagor on the Mortgage Note or Mortgage or to obtain a deficiency
judgment, or any other document or agreement that in the Special Servicer's
reasonable judgment is required to be executed in connection with the servicing
of any Mortgage Loan or REO Property, or to enforce any other remedies or rights
provided by the Mortgage Note or Mortgage or otherwise available at law or in
equity or to defend any legal action or counterclaim filed against the Trust
Fund, the Master Servicer, the Special Servicer or, if applicable, the related
Non-Trust Noteholder. Together with such documents or pleadings, the Special
Servicer shall deliver to the Trustee (and, if applicable, the related Non-Trust
Noteholder(s)) a certificate of a Servicing Officer requesting that such
pleadings or documents be executed by the Trustee and certifying as to the
reason such documents or pleadings are required and that the execution and
delivery thereof by the Trustee (on behalf of the Certificateholders and, in the
case of a Loan Combination, also on behalf of the related Non-Trust
Noteholder(s)) will not invalidate or otherwise affect the lien of the Mortgage,
except for the termination of such a lien upon completion of the foreclosure or
trustee's sale.
SECTION 3.11. Servicing Compensation.
(a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to receive the Master Servicing Fee with respect to
each Mortgage Loan (including each Specially Serviced Mortgage Loan) and each
REO Loan. As to each such Mortgage Loan and REO Loan, the Master Servicing Fee
shall accrue at the related Master Servicing Fee Rate and on the same principal
amount respecting which the related interest payment due on such Mortgage Loan
or deemed to be due on such REO Loan is computed and calculated on the same
interest accrual basis as that Mortgage Loan, which will be either a 30/360
Basis or an Actual/360 Basis (or, in the event of a Principal Prepayment in full
or other Liquidation Event with respect to a Mortgage Loan or an REO Loan, on
the basis of the actual number of days to elapse from and including the related
Due Date to but excluding the date of such Principal Prepayment or Liquidation
Event in a month consisting of 30 days). The foregoing sentence notwithstanding,
the Master Servicing Fee shall not accrue with respect to any Closing Date
Deposit Mortgage Loan for the interest accrual period to which the Closing Date
Deposit relates. The Master Servicing Fee with respect to any Mortgage Loan or
any REO Loan shall cease to accrue if a Liquidation Event occurs in respect
thereof. Earned but unpaid Master Servicing Fees shall be payable monthly on a
loan-by-loan basis, from payments of interest on each Mortgage Loan and REO
Revenues allocable as interest on each REO Loan. The Master Servicer shall be
entitled to recover unpaid Master Servicing Fees in respect of any Mortgage Loan
or any REO Loan out of that portion of related Insurance Proceeds or Liquidation
Proceeds allocable as recoveries of interest, to the extent permitted by Section
3.05(a)(iii) or Section 3.05(e), as applicable, and in the case of a Trust
Mortgage Loan or a Trust REO Loan, out of such other amounts as may be permitted
by Section 3.05(a). The right to receive the Master Servicing Fee may not be
transferred in whole or in part except in connection with the transfer of all of
the Master Servicer's responsibilities and obligations under this Agreement.
(b) Additional master servicing compensation in the form of:
(i) any and all Default Charges (or portion thereof that is
comprised of late payment charges) collected with respect to a Mortgage
Loan that is not a Specially Serviced Mortgage Loan, to the extent
provided in clause seventh of Section 3.26;
(ii) 50% of any and all assumption application fees, assumption
fees, modification fees, extension fees, consent fees, release fees,
waiver fees, fees paid in connection with defeasance and earn-out fees
actually paid by a Mortgagor with respect to a Serviced Mortgage Loan that
is not a Specially Serviced Mortgage Loan (provided, however, that if the
consent of the Special Servicer is not required pursuant to the terms of
this Agreement in connection with the underlying servicing action, then
the Master Servicer shall be entitled to receive 100% of such fees);
(iii) any and all charges for beneficiary statements or demands,
amounts collected for checks returned for insufficient funds and other
loan processing fees actually paid by a Mortgagor with respect to a
Serviced Mortgage Loan that is not a Specially Serviced Mortgaged Loan
and, in the case of checks returned for insufficient funds, with respect
to a Specially Serviced Mortgage Loan;
(iv) any and all Prepayment Interest Excesses collected with respect
to a Serviced Trust Mortgage Loan, including a Specially Serviced Mortgage
Loan (after deduction of the amounts required to be deposited by the
Master Servicer in the Collection Account for the related Distribution
Date pursuant to Section 3.19(a) in connection with Prepayment Interest
Shortfalls and amounts representing Casualty/Condemnation Interest
Shortfalls);
(v) interest or other income earned on deposits in the Investment
Accounts maintained by the Master Servicer (but only to the extent of the
Net Investment Earnings, if any, with respect to any such Investment
Account for each Collection Period and, further, in the case of a
Servicing Account or Reserve Account, only to the extent such interest or
other income is not required to be paid to any Mortgagor under applicable
law or under the related Mortgage Loan documents); and
(vi) other customary charges;
may be retained by the Master Servicer (subject to Section 3.11(e) and are not
required to be deposited in the Collection Account; provided that the Master
Servicer's right to receive Default Charges pursuant to clause (i) above shall
be limited to the portion of such items that have not been applied to pay, or
reimburse the Trust for, interest on Advances, Additional Trust Fund Expenses
and property inspection costs in respect of the related Mortgage Loan or REO
Loan as provided in Sections 3.03(d), 3.12(a) and 4.03(d) or as otherwise
provided in Section 3.26. Any of the amounts described in clauses (i) through
(v) that are collected by the Special Servicer shall be promptly paid to the
Master Servicer.
The Master Servicer shall be required to pay out of its own funds
all expenses incurred by it in connection with its servicing activities
hereunder (including, without limitation, payment of any amounts due and owing
to any of its Sub-Servicers and the premiums for any blanket policy insuring
against hazard losses pursuant to Section 3.07(b)), if and to the extent such
expenses are not payable directly out of the Collection Account or, with respect
to a Loan Combination, out of the related Loan Combination Custodial Account,
and the Master Servicer shall not be entitled to reimbursement therefor except
as expressly provided in this Agreement.
(c) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Special Servicing Fee with respect to
each Specially Serviced Mortgage Loan and each Serviced REO Loan. As to each
Specially Serviced Mortgage Loan and Serviced REO Loan, the Special Servicing
Fee shall accrue at the Special Servicing Fee Rate and on the same principal
amount respecting which the related interest payment due on such Specially
Serviced Mortgage Loan or deemed to be due on such Serviced REO Loan is computed
and calculated on the same interest accrual basis as that Mortgage Loan, which
will be either a 30/360 Basis or an Actual/360 Basis (or, in the event of a
Principal Prepayment in full or other Liquidation Event with respect to a
Serviced Mortgage Loan or Serviced REO Loan, on the basis of the actual number
of days to elapse from and including the related Due Date to but excluding the
date of such Principal Prepayment or Liquidation Event in a month consisting of
30 days); provided, however, that the Special Servicing Fee with respect to each
Specially Serviced Mortgage Loan and each Serviced REO Loan shall not be less
than $4,000 for any one-month period during which such Special Servicing Fee
accrues (or, in those cases where such Special Servicing Fee is accruing for a
partial period of less than one month, shall not be less than the prorated
portion of such $4,000 amount). The Special Servicing Fee with respect to any
Specially Serviced Mortgage Loan or Serviced REO Loan shall cease to accrue as
of the date a Liquidation Event occurs in respect thereof or it becomes a
Corrected Mortgage Loan. Subject to the penultimate paragraph of Section
3.11(c), earned but unpaid Special Servicing Fees shall be payable monthly out
of related Liquidation Proceeds and then general collections on the Mortgage
Loans and any REO Properties on deposit in the Collection Account pursuant to
Section 3.05(a).
As further compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Mortgage Loan, so long as such loan remains a Corrected Mortgage Loan.
As to each Corrected Mortgage Loan, the Workout Fee shall be payable out of, and
shall be calculated by application of the Workout Fee Rate to, each collection
of interest (other than Additional Interest and Penalty Interest) and principal
received on such Mortgage Loan for so long as it remains a Corrected Mortgage
Loan. The Workout Fee with respect to any Corrected Mortgage Loan will cease to
be payable if a Servicing Transfer Event occurs with respect thereto or if the
related Mortgaged Property becomes an REO Property; provided that a new Workout
Fee would become payable if and when such Mortgage Loan again became a Corrected
Mortgage Loan. If the Special Servicer is terminated or resigns, it will retain
the right to receive any and all Workout Fees payable with respect to any
Specially Serviced Mortgage Loan that became a Corrected Mortgage Loan during
the period that it acted as Special Servicer and remained a Corrected Mortgage
Loan at the time of its termination or resignation or if the Special Servicer
resolved the circumstances and/or conditions (including by way of a modification
of the related Mortgage Loan documents) causing the Mortgage Loan to be a
Specially Serviced Mortgage Loan, but the Mortgage Loan had not as of the time
the Special Servicer is terminated or resigns become a Corrected Mortgage Loan
because the related Mortgagor had not made three consecutive monthly debt
service payments (but had made the most recent monthly debt service payment
prior to the termination of the Special Servicer) and subsequently becomes a
Corrected Mortgage Loan as a result of making such three consecutive payments.
The successor Special Servicer will not be entitled to any portion of those
Workout Fees.
In addition, subject to the following sentence, the Special Servicer
shall be entitled to a Principal Recovery Fee with respect to each Specially
Serviced Mortgage Loan (or Qualified Substitute Mortgage Loan substituted in
lieu thereof) for which it obtains a full or discounted payoff from the related
Mortgagor, and the Special Servicer shall also be entitled to the Principal
Recovery Fee with respect to any Specially Serviced Mortgage Loan or
Administered REO Property as to which it receives any Liquidation Proceeds or
Insurance Proceeds and allocable as a recovery of principal, interest (other
than Additional Interest and Penalty Interest) and expenses in accordance with
Section 3.02(b) or the definition of "REO Loan," as applicable; and as to each
such Specially Serviced Mortgage Loan and Serviced REO Loan, the Principal
Recovery Fee shall be payable from, and will be calculated by application of the
Principal Recovery Fee Rate to the related payment or proceeds. Notwithstanding
the foregoing, no Principal Recovery Fee shall be payable in connection with, or
out of proceeds received in connection with: the repurchase or substitution of
any Mortgage Loan or REO Property by a Mortgage Loan Seller pursuant to the
related Mortgage Loan Purchase Agreement due to a Breach or a Document Defect
within (i) the time period (or extension thereof) provided for such repurchase
or substitution or (ii) if such repurchase or substitution occurs after such
time period (or extension thereof) and the Mortgage Loan Seller was acting in
good faith to resolve such Breach or Document Defect, within such further period
that will not end beyond the date that is 120 days following the end of the
initial time period (which is 90 days) provided for such repurchase or
replacement; or the purchase of any Trust Mortgage Loan or related Administered
REO Property by the Plurality Subordinate Certificateholder, the Special
Servicer or any Person (except an assignee meeting the requirements of Section
3.18(c)) pursuant to Section 3.18, by the related B-Noteholder (in the case of
an A-Note Trust Mortgage Loan) or by the Glendale Galleria Pari Passu Noteholder
or a Glendale Galleria Subordinate Noteholder (in the case of the Glendale
Galleria Trust Mortgage Loan) pursuant to the related Loan Combination
Intercreditor Agreement unless the purchase price with respect thereto includes
the Principal Recovery Fee, or by the Master Servicer, the Special Servicer or
the Plurality Subordinate Certificateholder pursuant to Section 9.01; or the
purchase of any Mortgage Loan by a mezzanine lender pursuant to the related
mezzanine intercreditor agreement unless the purchase price with respect thereto
includes the Principal Recovery Fee; or the removal of any Mortgage Loan or REO
Property from the Trust by the Sole Certificate Owner in connection with an
exchange of all of the outstanding Certificates owned by the Sole Certificate
Owner for all of the Trust Mortgage Loans and each REO Property remaining in the
Trust Fund pursuant to Section 9.01; and further no Principal Recovery Fee
shall, with respect to any Serviced Mortgage Loan, be payable (i) in connection
with a Periodic Payment received in connection with such Serviced Mortgage Loan
or (ii) to the extent a Workout Fee is payable concerning the related payment,
Liquidation Proceeds or Insurance Proceeds.
Notwithstanding the foregoing, any Special Servicing Fee, Workout
Fee and/or Principal Recovery Fee payable in accordance with the three preceding
paragraphs with respect to a Loan Combination (including, without limitation,
any successor REO Loans comprising same) shall be paid from the collections
received on such Loan Combination on deposit in the related Loan Combination
Custodial Account that may be applied to pay such fees in accordance with the
related Loan Combination Intercreditor Agreement, pursuant to Section 3.05(e).
Insofar as any Special Servicing Fee, Workout Fee and/or Principal Recovery Fee
is payable in respect of a Non-Trust Loan, such fee shall be payable solely from
collections in respect of such Non-Trust Loan.
The Special Servicer's right to receive the Special Servicing Fee,
the Workout Fee and the Principal Recovery Fee may not be transferred in whole
or in part except in connection with the transfer of all of the Special
Servicer's responsibilities and obligations under Sections 6.02, 6.04 and 6.09.
With respect to the Glendale Galleria Trust Mortgage Loan or any
related REO Property, the Special Servicer shall not be entitled to any Special
Servicing Fees, Workout Fees or Principal Recovery Fees.
(d) Additional servicing compensation in the form of: (i) all
Default Charges (or portion thereof that is comprised of late payment charges)
collected with respect to Specially Serviced Mortgage Loans, to the extent
provided in clause seventh of Section 3.26, and (subject to Section 3.11(b)(ii))
one-hundred percent (100%) of all assumption application fees collected with
respect to Specially Serviced Mortgage Loans and (ii) one-hundred percent (100%)
of any assumption fee or modification fee to the extent actually paid by a
Mortgagor with respect to any Specially Serviced Mortgage Loan and (subject to
Section 3.11(b)(ii)) 50% of all assumption application fees, assumption fees,
modification fees, extension fees, consent fees, release fees, waiver fees, fees
paid in connection with defeasance and earn-out fees actually paid by a
Mortgagor with respect to any non-Specially Serviced Mortgage Loan that is a
Serviced Mortgage Loan for which Special Servicer consent is required shall be
retained by the Special Servicer or promptly paid to the Special Servicer by the
Master Servicer (subject to Section 3.11(e)) and shall not be required to be
deposited in the Collection Account or any Loan Combination Custodial Account,
as the case may be; provided that the Special Servicer's right to receive
Default Charges pursuant to clause (i) above shall be limited to the portion of
such items that have not been applied to pay or reimburse the Trust for interest
on Advances, Additional Trust Fund Expenses and property inspection costs in
respect of the related Serviced Mortgage Loan as provided in Sections 3.03(d),
3.12(a) and 4.03(d) or as otherwise provided in Section 3.26. The Special
Servicer shall also be entitled to additional servicing compensation in the form
of: (i) interest or other income earned on deposits in the REO Accounts, if
established, in accordance with Section 3.06(b) (but only to the extent of the
Net Investment Earnings, if any, with respect to the REO Accounts for each
Collection Period); and (ii) to the extent not required to be paid to any
Mortgagor under applicable law, any interest or other income earned on deposits
in the Servicing Accounts maintained by the Special Servicer. The Special
Servicer shall be required to pay out of its own funds all general and
administrative expenses incurred by it in connection with its servicing
activities hereunder, and the Special Servicer shall not be entitled to
reimbursement therefor except as expressly provided in Section 3.05(a) and/or
Section 3.05(e) if and to the extent such expenses are not payable directly out
of the Collection Account, the Loan Combination Custodial Accounts or the REO
Accounts, as the case may be.
(e) If the Master Servicer or the Special Servicer collects an
assumption fee or an assumption application fee in connection with any transfer
or proposed transfer of any interest in a Mortgagor or a Mortgaged Property in
respect of a Serviced Mortgage Loan, then (notwithstanding anything herein to
the contrary) the Master Servicer or the Special Servicer, as applicable, will
apply that fee to cover the costs and expenses associated with that transfer or
proposed transfer that are not otherwise paid by the related Mortgagor and that
would otherwise be payable or reimbursable out of the Trust Fund, including any
Rating Agency fees and expenses to the extent such fees and expenses are
collectible under applicable law and the Master Servicer or the Special
Servicer, as appropriate, fails to enforce such requirement in accordance with
the related Mortgage Loan documents. Any remaining portion of such assumption
fee or of such assumption application fee will be applied as additional
compensation to the Master Servicer or the Special Servicer in accordance with
this Section 3.11. Neither the Master Servicer nor the Special Servicer shall
waive any assumption fee or assumption application fee, to the extent it would
constitute additional compensation for the other such party, without the consent
of such other party.
SECTION 3.12. Property Inspections; Collection of Financial
Statements; Delivery of Certain Reports.
(a) The Special Servicer shall perform or cause to be performed a
physical inspection of a Serviced Mortgaged Property as soon as practicable
after a related Serviced Mortgage Loan becomes a Specially Serviced Mortgage
Loan, provided that such expense shall be reimbursable first out of Default
Charges otherwise payable to the Special Servicer and the Master Servicer, then
as an Additional Trust Fund Expense (other than an expense allocable to a
Non-Trust Loan, which shall be reimbursable from the related Loan Combination
Custodial Account). In addition, after a Serviced Mortgage Loan becomes a
Specially Serviced Mortgage Loan, the Special Servicer shall perform or cause to
be performed a physical inspection of the related Mortgaged Property at least
once per calendar year, so long as such Serviced Mortgage Loan remains a
Specially Serviced Mortgage Loan. Beginning in 2007, the Master Servicer for
each Serviced Mortgage Loan other than a Specially Serviced Mortgage Loan or REO
Loan, shall at its expense perform or cause to be performed an inspection of (i)
all the Serviced Mortgaged Properties relating to a Mortgage Loan with an
outstanding principal balance greater than or equal to $2,000,000 at least once
per calendar year, unless such Mortgaged Property has been inspected in such
calendar year by the Special Servicer and (ii) all the Serviced Mortgaged
Properties relating to a Mortgage Loan with an outstanding principal balance
less than $2,000,000 at least once every two calendar years, unless such
Mortgaged Property has been inspected in such two-year period by the Special
Servicer; provided that, notwithstanding the foregoing, the Master Servicer
shall at its expense perform or caused to be performed an inspection of a
Serviced Mortgaged Property relating to a Mortgage Loan listed on the last
reported CMSA Servicer Watchlist at least once per calendar year, unless such
Mortgaged Property has been inspected in such calendar year by the Master
Servicer or Special Servicer. The Special Servicer and the Master Servicer shall
each prepare (and, in the case of the Special Servicer, shall deliver to the
Master Servicer) a written report of each such inspection performed by it that
sets forth in detail the condition of the Mortgaged Property and that specifies
the existence of: (i) any sale, transfer or abandonment of the Mortgaged
Property of which it is aware, (ii) any change in the condition, occupancy or
value of the Mortgaged Property of which the Master Servicer or the Special
Servicer, as applicable, is aware and considers material, or (iii) any visible
waste committed on the Mortgaged Property of which the Master Servicer or the
Special Servicer, as applicable, is aware and considers material. The Master
Servicer shall within 45 days of the receipt of the related inspection report,
deliver such reports complete with any photographs taken thereof, in an
electronic format, to the Certificate Administrator and to the Controlling Class
Representative (and in the case of a Loan Combination, the related Non-Trust
Noteholder(s)), and the Certificate Administrator shall obtain from the Master
Servicer and, subject to Section 3.15, make copies of all such inspection
reports available electronically at the Certificate Administrator's website
initially located at xxx.xxxxxxxx.xxx or, upon written request, provide copies
of any such inspection reports to the Certificateholders and Certificate Owners
by first class mail and at the expense of the requesting party. The Special
Servicer shall have the right to inspect or cause to be inspected (at its own
expense) every calendar year any Serviced Mortgaged Property related to a loan
that is not a Specially Serviced Mortgage Loan, provided that the Special
Servicer obtains the approval of the Master Servicer prior to such inspection,
and provides a copy of such inspection to the Master Servicer; and provided,
further, that the Master Servicer and the Special Servicer shall not both
inspect a Serviced Mortgaged Property that is not securing a Specially Serviced
Mortgage Loan in the same calendar year. If the Special Servicer performs such
inspection, such inspection shall satisfy the Master Servicer's inspection
obligations pursuant to this paragraph (a).
(b) The Special Servicer shall from time to time (and, in any event,
upon request) provide the Master Servicer with such information in its
possession regarding the Specially Serviced Mortgage Loans and Administered 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
Certificate Administrator. Without limiting the generality of the foregoing, not
later than 12:00 p.m. (New York City time) on the Business Day following each
Determination Date, beginning in January 2006, the Special Servicer shall
prepare and deliver or cause to be delivered to the Master Servicer the CMSA
Special Servicer Loan File that contains the information called for in, or that
will enable the Master Servicer to produce, the CMSA files and reports required
to be delivered by the Master Servicer to the Certificate Administrator
described below, in each case with respect to all Specially Serviced Mortgage
Loans and the REO Properties.
(c) The Master Servicer shall deliver to the Certificate
Administrator, no later than 1:00 p.m., New York City time, on the second
Business Day prior to each Distribution Date beginning in January 2006, the CMSA
Loan Periodic Update File with respect to the subject Distribution Date. Each
CMSA Loan Periodic Update File prepared by the Master Servicer shall be
accompanied by a CMSA Advance Recovery Report. The preparation of each CMSA
Advance Recovery Report shall constitute a responsibility of the Master Servicer
and shall not constitute a responsibility of any other party. Notwithstanding
anything in this Agreement that suggests otherwise, the Master Servicer shall
not be required to deliver a CMSA Advance Recovery Report (and no CMSA Loan
Periodic Update File need be accompanied by any such report) with respect to any
Collection Period for which all of the entries in the report would be "zero" or
"not applicable." The Master Servicer's responsibilities under this Section 3.12
with respect to information to be provided by the Special Servicer with respect
to Specially Serviced Mortgage Loans and Administered REO Properties shall be
subject to the satisfaction of the Special Servicer's obligations under Section
3.12(b), but the failure of the Special Servicer to provide information required
by it shall not relieve the Master Servicer of its duties to provide the related
reports, absent such information. Notwithstanding the foregoing, because the
Master Servicer will not receive the Servicing Files until the Closing Date and
will not have sufficient time to review and analyze such Servicing Files before
the initial Distribution Date, the parties agree that the CMSA Loan Periodic
Update File required to be delivered by the Master Servicer in January 2006 will
be based solely upon information generated from actual collections received by
the Master Servicer and from information the Depositor delivers or causes to be
delivered to the Master Servicer (including but not limited to information
prepared by third-party servicers of the subject Serviced Mortgage Loans with
respect to the period prior to the Closing Date). On or before 4:00 p.m., New
York City time, on each P&I Advance Date beginning in April 2006, the Master
Servicer shall deliver or cause to be delivered to the Certificate Administrator
the following reports with respect to the Mortgage Loans (and, if applicable,
the related REO Properties, providing the required information as of the related
Determination Date): (i) a CMSA Comparative Financial Status Report; (ii) a CMSA
Delinquent Loan Status Report; (iii) a CMSA Historical Loan Modification and
Corrected Mortgage Loan Report; (iv) a CMSA Historical Liquidation Report; (v) a
CMSA REO Status Report; (vi) a CMSA Servicer Watch List; (vii) a CMSA Property
File; (viii) a CMSA Loan Setup File; (ix) a CMSA Financial File; (x) a CMSA Loan
Level Reserve/LOC Report; and (xi) a CMSA Advance Recovery Report. Such reports
shall be in CMSA format (as in effect from time to time) and shall be in an
electronic format reasonably acceptable to both the Certificate Administrator
and the Master Servicer. The Master Servicer shall incorporate in the foregoing
reports any information and reports received (by the date in the month of such
Distribution Date that such information and reports are scheduled to be received
in accordance with the MLMT Series 2005-CKI1 Pooling and Servicing Agreement)
from the MLMT Series 2005-CKI1 Applicable Servicer with respect to the Glendale
Galleria Trust Mortgage Loan.
(d) The Special Servicer will deliver to the Master Servicer the
reports set forth in Section 3.12(b) and this Section 3.12(d), and the Master
Servicer shall deliver to the Certificate Administrator the reports set forth in
Section 3.12(c) in an electronic format reasonably acceptable to the Special
Servicer, the Master Servicer and the Certificate Administrator. The Master
Servicer may, absent manifest error, conclusively rely on the reports to be
provided by the Special Servicer pursuant to Section 3.12(b) and this Section
3.12(d) and, with respect to the Glendale Galleria Trust Mortgage Loan, by the
MLMT Series 2005-CKI1 Applicable Servicer pursuant to the MLMT Series 2005-CKI1
Pooling and Servicing Agreement. The Certificate Administrator may, absent
manifest error, conclusively rely on the CMSA Loan Periodic Update File to be
provided by the Master Servicer pursuant to Section 3.12(c). In the case of
information or reports to be furnished by the Master Servicer to the Certificate
Administrator pursuant to this Section 3.12, to the extent that such information
or reports are based on information or reports to be provided by the Special
Servicer pursuant to Section 3.12(b) and this Section 3.12(d) and, to the extent
that such reports are to be prepared and delivered by the Special Servicer
pursuant to Section 3.12(b) and this Section 3.12(d) or by the MLMT Series
2005-CKI1 Applicable Servicer pursuant to the MLMT Series 2005-CKI1 Pooling and
Servicing Agreement, the Master Servicer shall have no obligation to provide
such information to the Certificate Administrator until it has received such
information from the Special Servicer or the MLMT Series 2005-CKI1 Applicable
Servicer, as applicable, and the Master Servicer shall not be in default
hereunder due to a delay in providing information required by this Section 3.12
to the extent caused by the Special Servicer's failure to timely provide any
information or report required under Section 3.12(b) and this Section 3.12(d) of
this Agreement or the MLMT Series 2005-CKI1 Applicable Servicer's failure to
provide any information or report required to be provided to the holder of the
Glendale Galleria Trust Mortgage Loan pursuant to the MLMT Series 2005-CKI1
Pooling and Servicing Agreement, but the Master Servicer shall not be relieved
of its obligation to timely provide such reports absent the information not
provided by the Special Servicer as required by this Section 3.12 or by the MLMT
Series 2005-CKI1 Applicable Servicer.
Commencing with respect to the calendar quarter ended March 2006 the
Special Servicer, in the case of any Specially Serviced Mortgage Loan, and the
Master Servicer, in the case of each non-Specially Serviced Mortgage Loan that
is a 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 quarterly and annual
financial statements of such Mortgagor, to the extent such items are required
pursuant to the terms of the related Mortgage Loan documents. In addition, the
Special Servicer shall cause quarterly and annual operating statements, budgets
and rent rolls to be regularly prepared in respect of each Administered REO
Property and shall collect all such items promptly following their preparation.
The Special Servicer shall deliver images in suitable electronic media of all of
the foregoing items so collected or obtained by it to the Master Servicer within
30 days of its receipt thereof. The Master Servicer shall deliver all items
obtained by it, and all items required to be delivered to it by the Special
Servicer pursuant to the immediately preceding sentence to the Controlling Class
Representative (and in the case of a Loan Combination, the related Non-Trust
Noteholder(s), and the Certificate Administrator in an imaged format.
The Master Servicer shall maintain a CMSA Operating Statement
Analysis Report with respect to each Serviced Mortgaged Property and
Administered REO Property related to each Serviced Mortgage Loan. Within 60 days
after receipt by the Master Servicer from the related Mortgagor or otherwise, as
to each non-Specially Serviced Mortgage Loan that is a Serviced Mortgage Loan
and within 30 days after receipt by the Master Servicer from the Special
Servicer or otherwise, as to a Specially Serviced Mortgage Loan or an
Administered REO Property, of any annual operating statements and rent rolls
with respect to any Serviced Mortgaged Property or Administered REO Property,
the Master Servicer shall, based upon such operating statements or rent rolls,
prepare (or, if previously prepared, update) the CMSA NOI Adjustment Worksheet
for the subject Serviced Mortgaged Property or Administered REO Property. The
Master Servicer shall make available on its website or remit a copy of each CMSA
NOI Adjustment Worksheet prepared or updated by it (promptly following initial
preparation and each update thereof), together with, if not already provided
pursuant to this Section 3.12, the underlying operating statements and rent
rolls, to the Controlling Class Representative (and in the case of a Loan
Combination, the related Non-Trust Noteholder(s)), the Certificate Administrator
and the Special Servicer. Within 60 days (or, in the case of items received from
the Special Servicer or otherwise with respect to Specially Serviced Mortgage
Loans and Administered REO Properties, 30 days) after receipt by the Master
Servicer of any quarterly or annual operating statements with respect to any
Serviced Mortgaged Property or Administered REO Property, the Master Servicer
shall prepare or update and forward to the Certificate Administrator, the
Special Servicer and the Controlling Class Representative (and in the case of a
Loan Combination, the related Non-Trust Noteholder(s)) a CMSA Operating
Statement Analysis Report for such Serviced Mortgaged Property or Administered
REO Property, together with, if so requested and not previously provided
pursuant to this Section 3.12, the related quarterly or annual operating
statements.
(e) Except with respect to delivery to the Special Servicer or the
Controlling Class Representative, which deliveries shall be made in electronic
format, if the Master Servicer or the Special Servicer is required to deliver
any statement, report or information under any provision of this Agreement, the
Master Servicer or Special Servicer, as the case may be, may satisfy such
obligation by (x) physically delivering a paper copy of such statement, report
or information, (y) delivering such statement, report or information in a
commonly used electronic format or (z) making such statement, report or
information available on such Master Servicer's Internet Website or the
Certificate Administrator's Internet Website, unless this Agreement expressly
specifies a particular method of delivery. Notwithstanding the foregoing, the
Certificate Administrator may request delivery in paper format of any statement,
report or information required to be delivered to the Certificate Administrator.
(f) Notwithstanding any other provision in this Agreement, the
failure of the Master Servicer or Special Servicer to disclose any information
otherwise required to be disclosed by this Section 3.12, or that may otherwise
be disclosed pursuant to Section 3.15 or Section 4.02, shall not constitute a
breach of this Agreement to the extent the Master Servicer or Special Servicer
so fails because such disclosure, in the reasonable belief of the Master
Servicer or Special Servicer, as the case may be, would violate any applicable
law or any provision of a Mortgage Loan document prohibiting disclosure of
information with respect to the Mortgage Loans or Mortgaged Properties or would
constitute a waiver of the attorney-client privilege on behalf of the Trust. The
Master Servicer and Special Servicer may disclose any such information or any
additional information to any Person so long as such disclosure is consistent
with applicable law, the related Mortgage Loan documents and the Servicing
Standard. The Master Servicer or the Special Servicer may affix to any
information provided by it under this Agreement any disclaimer it deems
appropriate in its discretion (without suggesting liability on the part of any
other party hereto).
(g) The Master Servicer shall, contemporaneously with any related
delivery to the Certificate Administrator or the Special Servicer, as
applicable, provide any reports that contain information regarding a Loan
Combination Mortgaged Property or financial information regarding the related
Mortgagor to the related Non-Trust Noteholder(s).
(h) For the purposes of the production by the Master Servicer or the
Special Servicer of any such report that is required to state information with
respect to any Serviced Mortgage Loan for any period prior to the related Due
Date in January 2006, the Master Servicer or the Special Servicer, as the case
may be, may conclusively rely (without independent verification), absent
manifest error, on information provided to it by the related Mortgage Loan
Seller, by the related Mortgagor or (x) in the case of such a report produced by
the Master Servicer, by the Special Servicer (if other than such Master Servicer
or an Affiliate thereof) and (y) in the case of such a report produced by the
Special Servicer, by the Master Servicer (if other than such Special Servicer or
an Affiliate thereof). Absent manifest error of which it has actual knowledge,
neither the Master Servicer nor the Special Servicer shall be responsible for
the accuracy or completeness of any information supplied to it by a Mortgagor or
third party that is included in any reports, statements, materials or
information prepared or provided by the Master Servicer or the Special Servicer,
as the case may be. The Certificate Administrator shall not be responsible for
the accuracy or completeness of any information supplied to it for delivery
pursuant to this Section. Neither the Certificate Administrator, the Master
Servicer nor the Special Servicer shall have any obligation to verify the
accuracy or completeness of any information provided by a Mortgagor or third
party. All reports provided pursuant this Section 3.12 shall be in an electronic
format reasonably acceptable to both the Certificate Administrator and the
Master Servicer.
(i) The preparation and maintenance by the Master Servicer and the
Special Servicer of all the reports specified in this Section 3.12 with respect
to a Loan Combination, the corresponding Mortgaged Property and/or any related
REO Property, including the calculations made therein, shall be done in
accordance with CMSA standards, to the extent applicable thereto.
SECTION 3.13. Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer shall deliver
to the Certificate Administrator, the Controlling Class Representative, each
Non-Trust Noteholder and the Rating Agencies (with a copy to the Depositor),
and, in the case of the Special Servicer, to the Master Servicer, on or before
May 1st of each year, beginning in 2006 (provided that if any such Officer's
Certificate is required in connection with any filing with the Securities and
Exchange Commission, the Master Servicer and the Special Servicer shall deliver
such items on or before March 15th of each year, beginning in 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 (or, if applicable, the portion of such year
during which the Certificates were outstanding) 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 all of its obligations under
this Agreement in all material respects throughout such year (or, if applicable,
the portion of such year during which the Certificates were outstanding), or, if
there has been a material default in the fulfillment of any such obligation,
specifying each such material 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 REMIC I or REMIC II as a REMIC under the REMIC Provisions or of
Grantor Trust A-3FL, Grantor Trust A-4FC or Grantor Trust Z as a "grantor trust"
for income tax purposes under the Grantor Trust Provisions from the Internal
Revenue Service or any other governmental agency or body or, if it has received
any such notice, specifying the details thereof. The Depositor hereby directs
the Certificate Administrator to notify, and the Certificate Administrator
hereby so notifies, the Master Servicer and the Special Servicer that an Annual
Report on Form 10-K shall be required to be filed with respect to the Trust for
2005.
SECTION 3.14. Reports by Independent Public Accountants.
On or before May 1st of each year, beginning in 2006 (provided that
if any such reports are required in connection with any filing with the
Securities and Exchange Commission, the Master Servicer and the Special Servicer
shall deliver such items on or before March 15th of each year, beginning in
2006), each of the Master Servicer and the Special Servicer at its expense shall
cause a firm of Independent public accountants (which may also render other
services to the Master Servicer or the Special Servicer) that is a member of the
American Institute of Certified Public Accountants to furnish a statement to the
Certificate Administrator, the Rating Agencies, the Controlling Class
Representative and the Depositor and, in the case of the Special Servicer, to
the Master Servicer, to the effect that such firm has examined the servicing
operations of the Master Servicer or the Special Servicer, as the case may be,
for the previous calendar year and that, on the basis of such examination,
conducted substantially in compliance with USAP, such firm confirms that the
Master Servicer or the Special Servicer, as the case may be, complied with the
minimum servicing standards identified in USAP, in all material respects, except
for such significant exceptions or errors in records that, in the opinion of
such firm, the USAP requires it to report. In rendering such statement, such
firm may rely, as to matters relating to direct servicing of mortgage loans by
Sub-Servicers, upon comparable statements for examinations conducted
substantially in compliance with the Uniform Single Audit Program for Mortgage
Bankers (rendered within one year of such statement) of independent public
accountants with respect to the related Sub-Servicer.
SECTION 3.15. Access to Certain Information.
(a) Upon 10 days' prior written notice, the Master Servicer (with
respect to the items in clauses (a), (b), (c), (d), (e), (f), (h), (i) and (j)
below, to the extent such items are in its possession), the Special Servicer
(with respect to the items in clauses (d), (e), (f), (g), (h) and (i) below, to
the extent those items are in its possession) and the Certificate Administrator
(with respect to the items in clauses (a) through (d) below) or the Trustee with
respect to the items in clauses (e) through (j) below, in each case, to the
extent those items are in its possession) shall make available at their
respective offices primarily responsible for administration of the Mortgage
Loans, during normal business hours, or send to the requesting party, such party
having been certified to the Master Servicer, the Special Servicer, the
Certificate Administrator or the Trustee, as applicable, in accordance with (a)
and (b) in the following paragraph, as appropriate, at the expense of such
requesting party (unless otherwise provided in this Agreement), for review by
any Certificate Owner or Certificateholder or any prospective transferee of any
Certificate or interest therein, the Trustee, the Certificate Administrator, the
Rating Agencies, the Underwriters and the Depositor originals or copies of the
following items: (a) this Agreement and any amendments thereto, (b) all
Distribution Date Statements delivered to holders of the relevant Class of
Certificates since the Closing Date and all reports, statements and analyses
delivered by the Master Servicer since the Closing Date pursuant to Section
3.12(c), (c) all Officer's Certificates delivered by the Master Servicer or the
Special Servicer since the Closing Date pursuant to Section 3.13, (d) all
accountants' reports delivered to the Master Servicer in respect of itself or
the Special Servicer since the Closing Date as described in Section 3.14, (e)
the most recent property inspection report prepared by or on behalf of the
Master Servicer in respect of each Serviced Mortgaged Property and any
Environmental Assessments prepared pursuant to Section 3.09, (f) the most recent
Serviced Mortgaged Property annual operating statements and rent roll, if any,
collected by or on behalf of the Master Servicer, (g) any and all modifications,
waivers and amendments of the terms of a Serviced Mortgage Loan and the Asset
Status Report prepared by the Special Servicer pursuant to Section 3.21(c), (h)
the Servicing File relating to each Serviced Mortgage Loan, (i) any and all
Officer's Certificates and other evidence delivered by the Master Servicer or
the Special Servicer, as the case may be, to support its determination that any
Advance was, or if made, would be, a Nonrecoverable Advance including appraisals
affixed thereto and any Required Appraisal prepared pursuant to Section 3.09(a)
and (j) the MLMT Series 2005-CKI1 Pooling and Servicing Agreement, and any
reports, statements, documents and other written information delivered under
this Agreement to the Master Servicer for the Trust on behalf of the Trustee, or
to the Trustee, as holder of the Glendale Galleria Trust Mortgage Loan. Copies
of any and all of the foregoing items will be available from the Master
Servicer, the Special Servicer, the Trustee or the Certificate Administrator, as
the case may be, upon request and payment of reasonable copying costs but shall
be provided to any of the Rating Agencies and the Controlling Class
Representative (and with respect to a Loan Combination, the related Non-Trust
Noteholder(s)) at no cost pursuant to their reasonable requests. The Master
Servicer, the Special Servicer, the Certificate Administrator and the Trustee
may each satisfy its obligations under this Section 3.15(a) by making such items
available for review on its Internet Website with the use of a password.
In connection with providing access to or copies of the items
described in the preceding paragraph pursuant to this Section 3.15, or with
respect to the Controlling Class Representative (and in the case of a Loan
Combination, the related Non-Trust Noteholder(s)), in connection with providing
access to or copies of any items in accordance with this Agreement, the
Certificate Administrator, the Master Servicer or the Special Servicer, as
applicable, shall require: (a) in the case of Certificate Owners,
Certificateholders and the Controlling Class Representative (and in the case of
a Loan Combination, the related Non-Trust Noteholder(s)), a confirmation
executed by the requesting Person substantially in the form of Exhibit I-1
hereto (or such other form as may be reasonably acceptable to the Certificate
Administrator, the Master Servicer or the Special Servicer, as applicable, and
which may provide indemnification for the Master Servicer, the Special Servicer
and the Certificate Administrator) generally to the effect that such Person is a
beneficial holder of Book-Entry Certificates, or a representative of a
beneficial holder of Book-Entry Certificates, and, subject to the last sentence
of this paragraph, will keep such information confidential (except that any such
Certificate Owner, any such Certificateholder and the Controlling Class
Representative (and in the case of a Loan Combination, the related Non-Trust
Noteholder(s)) may provide such information to any other Person that holds or is
contemplating the purchase of any Certificate or interest therein, provided that
such other Person confirms in writing such ownership interest or prospective
ownership interest and agrees to keep such information confidential); and (b) in
the case of a prospective purchaser of a Certificate or an interest therein,
confirmation executed by the requesting Person substantially in the form of
Exhibit I-2 hereto (or such other form as may be reasonably acceptable to the
Certificate Administrator, the Master Servicer or the Special Servicer, as
applicable, and which may provide indemnification for the Master Servicer, the
Special Servicer or the Certificate Administrator, as applicable) generally to
the effect that such Person is a prospective purchaser of a Certificate or an
interest therein, is requesting the information for use in evaluating a possible
investment in Certificates and, subject to the last sentence of this paragraph,
will otherwise keep such information confidential. The Certificate Owners and
Holders of the Certificates, by their acceptance thereof, and the Controlling
Class Representative (and in the case of a Loan Combination, the related
Non-Trust Noteholder(s)), by its acceptance of its appointment, will be deemed
to have agreed, subject to the last sentence of this paragraph, to keep such
information confidential (except that any Holder may provide such information
obtained by it to any other Person that holds or is contemplating the purchase
of any Certificate or interest therein, provided that such other Person confirms
in writing such ownership interest or prospective ownership interest and agrees
to keep such information confidential) and agrees not to use such information in
any manner that would violate federal, state or local securities laws.
Notwithstanding the foregoing, no Certificateholder, Certificate Owner or
prospective Certificateholder or Certificate Owner shall be obligated to keep
confidential any information received from the Certificate Administrator or the
Master Servicer, as applicable, pursuant to this Section 3.15 that has
previously been made available on an unrestricted basis and without a password
via the Certificate Administrator's or the Master Servicer's, as applicable,
Internet Website or has previously been filed with the Securities and Exchange
Commission, and the Certificate Administrator or the Master Servicer, as
applicable, shall not require either of the certifications contemplated by the
second preceding sentence in connection with providing any information pursuant
to this Section 3.15 that has previously been made available without a password
via the Certificate Administrator's or the Master Servicer's, as applicable,
Internet Website or has previously been filed with the Securities and Exchange
Commission.
Each of the Master Servicer and the Special Servicer shall afford to
the Trustee, the Certificate Administrator, the Rating Agencies and the
Depositor, and to the OTS, the FDIC, the Federal Reserve Board and any other
banking or insurance regulatory authority that may exercise authority over any
Certificateholder, access to any records regarding the Mortgage Loans and the
servicing thereof within its control, except to the extent it is prohibited from
doing so by applicable law or contract or to the extent such information is
subject to a privilege under applicable law to be asserted on behalf of the
Certificateholders. Such access shall be afforded only upon reasonable prior
written request and during normal business hours at the offices of the Master
Servicer or the Special Servicer, as the case may be, designated by it.
The Trustee, the Certificate Administrator, the Master Servicer, the
Special Servicer and the Underwriters may require payment from the
Certificateholder or Certificate Owner of a sum sufficient to cover the
reasonable costs and expenses of providing any such information or access
pursuant to this Section 3.15 to, or at the request of, the Certificateholders
or Certificate Owners or prospective transferees, including, without limitation,
copy charges and, in the case of Certificateholders or Certificate Owners
requiring on site review in excess of three Business Days, reasonable fees for
employee time and for space.
(b) The Certificate Administrator shall, and the Master Servicer may
but is not required to, make available each month to any interested party on
their respective Internet Websites (i) the Distribution Date Statement and (ii)
this Agreement, the Prospectus and the Prospectus Supplement. In addition, on
each Distribution Date, the Certificate Administrator shall make available to
any interested party via the Certificate Administrator's Internet Website the
Unrestricted Servicer Reports, the CMSA Loan Periodic Update File, the CMSA Loan
Setup File, the CMSA Bond Level File and the CMSA Collateral Summary File, in
each case for such Distribution Date, and any other information at the request
of the Depositor. The Certificate Administrator shall make available on each
Distribution Date (i) the Restricted Servicer Reports and (ii) the CMSA Property
File to any Privileged Person via the Certificate Administrator's Internet
Website with the use of a password (or other comparable restricted access
mechanism) provided by the Certificate Administrator.
The Master Servicer may, but is not required to, make available each
month via its Internet Website to any Privileged Person, with the use of a
password provided by the Master Servicer, the reports and files comprising the
CMSA Investor Reporting Package.
(c) In connection with providing access to the Certificate
Administrator's Internet Website or the Master Servicer's Internet Website, the
Certificate Administrator or the Master Servicer, as applicable, may require
registration and the acceptance of a disclaimer and may otherwise adopt
reasonable rules and procedures that may include, to the extent the Master
Servicer or the Certificate Administrator, as applicable, deems necessary or
appropriate, conditioning access on the execution and delivery of an agreement
(which may be in the form of Exhibit I-1 or I-2 (or such other form as may be
reasonably acceptable to the Certificate Administrator or the Master Servicer,
as applicable)) governing the availability, use and disclosure of such
information and providing indemnification to the Master Servicer or the
Certificate Administrator, as applicable, for any liability or damage that may
arise therefrom.
The Master Servicer and the Certificate Administrator may, in
accordance with such reasonable rules and procedures as each may adopt
(including conditioning access on the execution and delivery of an agreement
(which may be in the form of Exhibit I-1 or I-2 (or such other form as may be
reasonably acceptable to the Certificate Administrator or the Master Servicer,
as applicable)) governing the availability, use and disclosure of information
and providing indemnification to the Master Servicer or the Certificate
Administrator as applicable, for any liability or damage that may arise
therefrom), also make available, through its Internet Website or otherwise, any
additional information relating to the Mortgage Loans, the Mortgaged Properties
or the Mortgagors for review by any Persons to whom the Master Servicer or the
Certificate Administrator, as applicable, believes such disclosure is
appropriate, in each case except to the extent doing so is prohibited by
applicable law or by the related Mortgage Loan (in the case of the Certificate
Administrator, if it has actual knowledge of such prohibition by the related
Mortgage Loan).
Notwithstanding anything in this Agreement to the contrary, the
Master Servicer and the Certificate Administrator may withhold (other than with
respect to items required to be delivered under this Agreement to the
Controlling Class Representative (and, in the case of a Loan Combination, the
related Non-Trust Noteholder(s)) any information not yet included in a Form 8-K
Current Report filed with the Securities and Exchange Commission or otherwise
made publicly available with respect to which the Certificate Administrator or
the Master Servicer has determined that such withholding is appropriate.
Any transmittal of information by the Master Servicers or the
Certificate Administrator to any Person other than the Rating Agencies or the
Depositor may be accompanied by a letter containing the following provision:
"By receiving the information set forth herein, you hereby
acknowledge and agree that the United States securities laws
restrict any person who possesses material, non-public information
regarding the Trust that issued Xxxxxxx Xxxxx Mortgage Trust
2005-LC1, Commercial Mortgage Pass-Through Certificates, Series
2005-LC1, from purchasing or selling such Certificates in
circumstances where the other party to the transaction is not also
in possession of such information. You also acknowledge and agree
that such information is being provided to you for the purposes of,
and such information may be used only in connection with, evaluation
by you or another Certificateholder or prospective purchaser of such
Certificates or beneficial interest therein."
(d) If three or more Holders or the Controlling Class Representative
(hereinafter referred to as "Applicants" with a single Person which (together
with its Affiliates) is the Holder of more than one Class of Certificates being
viewed as a single Applicant for these purposes) apply in writing to the
Certificate Administrator, and such application states that the Applicants'
desire to communicate with other Holders with respect to their rights under this
Agreement or under the Certificates and is accompanied by a copy of the
communication which such Applicants propose to transmit, then the Certificate
Administrator shall, within five Business Days after the receipt of such
application, send, at the Applicants' expense, the written communication
proffered by the Applicants to all Certificateholders at their addresses as they
appear in the Certificate Register.
(e) The Master Servicer and the Special Servicer shall not be
required to confirm, represent or warrant the accuracy or completeness of any
other Person's information or report included in any communication from the
Master Servicer or the Special Servicer under this Agreement. None of the Master
Servicer, the Special Servicer or the Certificate Administrator shall be liable
for the dissemination of information in accordance with the terms of this
Agreement. The Certificate Administrator makes no representations or warranties
as to the accuracy or completeness of any report, document or other information
made available on the Certificate Administrator's Internet Website and assumes
no responsibility therefor. In addition, the Certificate Administrator, the
Master Servicer and the Special Servicer may disclaim responsibility for any
information distributed by the Certificate Administrator, the Master Servicer or
the Special Servicer, respectively, for which it is not the original source.
(f) So long as the Trust is not terminated pursuant to the terms
hereunder, each Mortgage Loan Seller shall have the right, up to twice per
calendar year, to obtain from the Master Servicer contact information of the
Mortgagor (including name, address and telephone number) under each Mortgage
Loan (other than any Mortgage Loan sub-serviced by such Mortgage Loan Seller)
that such Mortgage Loan Seller has sold to the Depositor and the Master Servicer
agrees to comply with any such request for information made by a Mortgage Loan
Seller.
SECTION 3.16. Title to REO Property; REO Accounts.
(a) If title to any Serviced Mortgaged Property is acquired, the
deed or certificate of sale shall be issued to the Trustee or its nominee on
behalf of the Certificateholders and, in the case of a Loan Combination
Mortgaged Property, on behalf of the related Non-Trust Noteholder(s). If,
pursuant to Section 3.09(b), the Special Servicer formed or caused to be formed,
at the expense of the Trust, a single member limited liability company (of which
the Trust is the sole member) for the purpose of taking title to one or more
Administered REO Properties pursuant to this Agreement, then (subject to the
interests of, if affected, the related Non-Trust Noteholder(s)), the deed or
certificate of sale with respect to any such REO Property shall be issued to
such single member limited liability company. The limited liability company
shall be a manager-managed limited liability company, with the Special Servicer
to serve as the initial manager to manage the property of the limited liability
company, including any applicable REO Property, in accordance with the terms of
this Agreement as if such property was held directly in the name of the Trust or
Trustee under this Agreement.
The Special Servicer, on behalf of the Trust Fund and, in the case
of any Loan Combination REO Property, the related Non-Trust Noteholder(s), shall
sell any Administered REO Property as soon as practicable in accordance with the
Servicing Standard, but prior to the end of the third year following the
calendar year in which REMIC I acquires ownership of such Administered REO
Property for purposes of Section 860G(a)(8) of the Code, unless the Special
Servicer either (i) applies for, more than 60 days prior to the end of such
third succeeding year, and is granted an extension of time (a "REO Extension")
by the Internal Revenue Service to sell such Administered REO Property or (ii)
obtains for the Trustee an Opinion of Counsel, addressed to the Trustee, the
Certificate Administrator, the Special Servicer and the Master Servicer, to the
effect that the holding by REMIC I of such Administered REO Property subsequent
to the end of such third succeeding year will not result in the imposition of
taxes on "prohibited transactions" (as defined in Section 860F of the Code) on
either of REMIC I or REMIC II or cause either of REMIC I or REMIC II to fail to
qualify as a REMIC at any time that any Certificates are outstanding. If the
Special Servicer is granted the REO Extension contemplated by clause (i) of the
immediately preceding sentence or obtains the Opinion of Counsel contemplated by
clause (ii) of the immediately preceding sentence, the Special Servicer shall
sell the subject Administered REO Property within such extended period as is
permitted by such REO Extension or such Opinion of Counsel, as the case may be.
Any expense incurred by the Special Servicer in connection with its obtaining
the REO Extension contemplated by clause (i) of the second preceding sentence or
its obtaining the Opinion of Counsel contemplated by clause (ii) of the second
preceding sentence, or for the creation of and the operating of a single member
limited liability company, shall be covered as, and reimbursable as, a Servicing
Advance.
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any Administered REO Property separate
and apart from its own funds and general assets. If an REO Acquisition shall
occur in respect of any Serviced Mortgaged Property (other than a Loan
Combination Mortgaged Property), the Special Servicer shall establish and
maintain one or more accounts (collectively, the "Pool REO Account"), to be held
on behalf of the Trustee in trust for the benefit of the Certificateholders, for
the retention of revenues and other proceeds derived from each Administered REO
Property (other than any Loan Combination REO Property). If such REO Acquisition
occurs with respect to a Loan Combination Mortgaged Property, then the Special
Servicer shall establish an REO Account solely with respect to such property (a
"Loan Combination REO Account"), to be held for the benefit of the
Certificateholders and the related Non-Trust Noteholder. The Pool REO Account
and each Loan Combination REO Account shall each be an Eligible Account. The
Special Servicer shall deposit, or cause to be deposited, in the applicable REO
Account all REO Revenues, Insurance Proceeds and Liquidation Proceeds received
in respect of any Administered REO Property within 2 Business Days of receipt.
Funds in the REO Accounts may be invested in Permitted Investments in accordance
with Section 3.06. The Special Servicer shall be entitled to make withdrawals
from each REO Account to pay itself, as additional special servicing
compensation in accordance with Section 3.11(d), interest and investment income
earned in respect of amounts held in such REO Account as provided in Section
3.06(b) (but only to the extent of the Net Investment Earnings with respect to
such REO Account for any Collection Period). The Special Servicer shall give
written notice to the Certificate Administrator and the Master Servicer of the
location of each REO Account, and shall give notice to the related Non-Trust
Noteholder(s) of the location of any Loan Combination REO Account, in each case
when first established and of the new location of any such REO Account prior to
any change thereof.
(c) The Special Servicer shall withdraw from the related REO Account
funds necessary for the proper operation, management, leasing, maintenance and
disposition of any Administered REO Property, but only to the extent of amounts
on deposit in such REO Account relating to such Administered REO Property
(including any monthly reserve or escrow amounts necessary to accumulate
sufficient funds for taxes, insurance and anticipated capital expenditures (the
"Impound Reserve")). On each Determination Date, the Special Servicer shall
withdraw from the Pool REO Account and deposit into the Collection Account, or
deliver to the Master Servicer or such other Person as may be designated by the
Master Servicer (which shall deposit such amounts into the Collection Account)
the aggregate of all amounts received in respect of the related Administered REO
Property during the Collection Period ending on such Determination Date, net of
any withdrawals made out of such amounts pursuant to the preceding sentence. On
each Determination Date, the Special Servicer shall withdraw from each Loan
Combination REO Account and deposit into the related Loan Combination Custodial
Account, or deliver to the Master Servicer or such other Person as may be
designated by the Master Servicer (which shall deposit such amounts into the
related Loan Combination Custodial Account) the aggregate of all amounts then on
deposit therein that were received in respect of the related Loan Combination
REO Property during the Collection Period ending on such Determination Date, net
of any withdrawals made out of such amounts pursuant to the second preceding
sentence. Notwithstanding the foregoing, in addition to the Impound Reserve, the
Special Servicer may retain in the applicable REO Account such portion of
proceeds and collections in respect of any Administered REO Property as may be
necessary to maintain a reserve of sufficient funds for the proper operation,
management, leasing, maintenance and disposition of such Administered REO
Property (including, without limitation, the creation of a reasonable reserve
for repairs, replacements, necessary capital improvements and other related
expenses), such reserve not to exceed an amount reasonably estimated to be
sufficient to cover such items estimated to be incurred during the following
twelve-month period.
(d) The Special Servicer shall keep and maintain separate records,
on a property-by-property basis, for the purpose of accounting for all deposits
to, and withdrawals from, each REO Account pursuant to Section 3.16(b) or (c).
The Special Servicer shall provide the Master Servicer any information with
respect to each REO Account as is reasonably requested by the Master Servicer.
SECTION 3.17. Management of REO Property.
(a) Prior to the acquisition by it of title to a Serviced Mortgaged
Property, the Special Servicer shall review the operation of such Serviced
Mortgaged Property and determine the nature of the income that would be derived
from such property if it were acquired by the Trust Fund. If the Special
Servicer determines from such review that:
(i) None of the income from Directly Operating such Serviced
Mortgaged Property would be subject to tax as "net income from foreclosure
property" within the meaning of the REMIC Provisions or would be subject
to the tax imposed on "prohibited transactions" under Section 860F of the
Code (either such tax referred to herein as an "REO Tax"), then such
Serviced Mortgaged Property may be Directly Operated by the Special
Servicer as Administered REO Property (other than the holding of such
Administered REO Property primarily for sale to customers or the
performance of any construction work thereon);
(ii) Directly Operating such Serviced Mortgaged Property as an
Administered REO Property could result in income from such property that
would be subject to an REO Tax, but that a lease of such property to
another party to operate such property, or the performance of some
services by an Independent Contractor with respect to such property, or
another method of operating such property would not result in income
subject to an REO Tax, then the Special Servicer may (provided that in the
reasonable judgment of the Special Servicer (exercised in accordance with
the Servicing Standard), such alternative is commercially reasonable)
acquire such Serviced Mortgaged Property as Administered REO Property and
so lease or operate such Administered REO Property; or
(iii) It is reasonable to believe that Directly Operating such
property as Administered REO Property could result in income subject to an
REO Tax and that no commercially reasonable means exists to operate such
property as Administered REO Property without the Trust Fund incurring or
possibly incurring an REO Tax on income from such property, the Special
Servicer shall deliver to the REMIC Administrator, in writing, a proposed
plan (the "Proposed Plan") to manage such property as Administered REO
Property. Such plan shall include potential sources of income, and, to the
extent reasonably possible, estimates of the amount of income from each
such source. Within a reasonable period of time after receipt of such
plan, the REMIC Administrator shall consult with the Special Servicer and
shall advise the Special Servicer of the REMIC Administrator's federal
income tax reporting position with respect to the various sources of
income that the Trust Fund would derive under the Proposed Plan. In
addition, the REMIC Administrator shall (to the extent reasonably
possible) advise the Special Servicer of the estimated amount of taxes
that the Trust Fund would be required to pay with respect to each such
source of income. After receiving the information described in the two
preceding sentences from the REMIC Administrator, the Special Servicer
shall either (A) implement the Proposed Plan (after acquiring the
respective Serviced Mortgaged Property as Administered REO Property) or
(B) manage such property in a manner that would not result in the
imposition of an REO Tax on the income derived from such property. All of
the REMIC Administrator's expenses (including any fees and expenses of
counsel or other experts reasonably retained by it) incurred pursuant to
this section shall be reimbursed to it from the Trust Fund in accordance
with Section 10.01(e).
The Special Servicer's decision as to how each Administered REO
Property shall be managed and operated shall be based on the Servicing Standard
and, further, based on the reasonable judgment of the Special Servicer as to
which means would be in the best interest of the Certificateholders (and, in the
case of any Loan Combination REO Property, the related Non-Trust Noteholder(s))
by maximizing (to the extent commercially reasonable and consistent with Section
3.17(b)) the net after-tax REO Revenues received by the Trust Fund with respect
to such property and, to the extent consistent with the foregoing, in the same
manner as would prudent mortgage loan servicers operating acquired mortgaged
property comparable to the respective Serviced Mortgaged Property. Both the
Special Servicer and the REMIC Administrator may, at the expense of the Trust
Fund payable pursuant to Section 3.05(a)(xiii) consult with counsel.
(b) If title to any Administered REO Property is acquired, the
Special Servicer shall manage, conserve, protect and operate such Administered
REO Property for the benefit of the Certificateholders (and, in the case of any
Loan Combination REO Property, the related Non-Trust Noteholder(s)) solely for
the purpose of its prompt disposition and sale in a manner that does not and
will not: (i) cause such Administered REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code for
purposes of Section 860D(a) of the Code; or (ii) except as contemplated by
Section 3.17(a), either result in the receipt by any REMIC of any "income from
non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or
result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to
the foregoing, however, the Special Servicer shall have full power and authority
to do any and all things in connection therewith as are consistent with the
Servicing Standard and, consistent therewith, shall withdraw from the related
REO Account, to the extent of amounts on deposit therein with respect to any
Administered REO Property, funds necessary for the proper operation, management,
maintenance and disposition of such Administered REO Property, including without
limitation:
(i) all insurance premiums due and payable in respect of such
Administered REO Property;
(ii) all real estate taxes and assessments in respect of such
Administered REO Property that may result in the imposition of a lien
thereon;
(iii) any ground rents in respect of such Administered REO Property;
and
(iv) all costs and expenses necessary to maintain, lease, sell,
protect, manage and restore such Administered REO Property.
To the extent that amounts on deposit in the applicable REO Account
in respect of any Administered REO Property are insufficient for the purposes
set forth in the preceding sentence with respect to such Administered REO
Property, the Master Servicer, subject to Section 3.03(c), shall make Servicing
Advances in such amounts as are necessary for such purposes unless (as evidenced
by an Officer's Certificate delivered to the Certificate Administrator) the
Master Servicer determines, in accordance with the Servicing Standard, that such
payment would be a Nonrecoverable Advance; provided, however, that the Master
Servicer may make any such Servicing Advance without regard to recoverability if
it is a necessary fee or expense incurred in connection with the defense or
prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special
Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to such
Administered REO Property, if the New Lease, by its terms would give rise
to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease
other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered REO
Property, other than the completion of a building or other improvement
thereon, and then only if more than 10% of the construction of such
building or other improvement was completed before default on the related
Mortgage Loan became imminent, all within the meaning of Section
856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an
Independent Contractor, to Directly Operate such Administered REO Property
on any date more than 90 days after the related REO Acquisition;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Master Servicer, at the
direction of the Special Servicer, and shall be reimbursable as a Servicing
Advance, unless such Servicing Advance would be a Nonrecoverable Advance, in
which case such cost shall be an expense of the Trust) to the effect that such
action would not cause such Administered REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code for
purposes of Section 860D(a) of the Code at any time that it is held by REMIC I,
in which case the Special Servicer may take such actions as are specified in
such Opinion of Counsel.
(d) Unless Section 3.17(a)(i) applies, the Special Servicer shall
contract with any Independent Contractor for the operation and management of any
Administered REO Property, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be
expenses of the Trust Fund) shall be reasonable and customary in
consideration of the nature and locality of such Administered REO
Property;
(iii) except as permitted under Section 3.17(a), any such contract
shall require, or shall be administered to require, that the Independent
Contractor, in a timely manner, (A) pay out of related REO Revenues all
costs and expenses incurred in connection with the operation and
management of such Administered REO Property, including, without
limitation, those listed in Section 3.17(b) above, and (B) except to the
extent that such revenues are derived from any services rendered by the
Independent Contractor to tenants of such Administered REO Property that
are not customarily furnished or rendered in connection with the rental of
real property (within the meaning of Section 1.856-4(b)(5) of the Treasury
regulations or any successor provision), remit all related revenues
collected (net of its fees and such costs and expenses) to the Special
Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of such
Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to
the same extent as if it alone were performing all duties and obligations
in connection with the operation and management of such Administered REO
Property.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations under Section 3.16 and this Section 3.17 for indemnification of
the Special Servicer by any such Independent Contractor, and nothing in this
Agreement shall be deemed to limit or modify such indemnification. No agreement
entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing
Agreement for purposes of Section 3.22.
SECTION 3.18. Resolution of Defaulted Mortgage Loans and REO
Properties.
(a) The Master Servicer, the Special Servicer or the Trustee may
sell or purchase, or permit the sale or purchase of, a Trust Mortgage Loan or an
REO Property related thereto only on the terms and subject to the conditions set
forth in this Section 3.18 or as otherwise expressly provided in or contemplated
by Section 2.03(a), Section 9.01 and/or any related co-lender, intercreditor or
similar agreement to which the Trust is a party.
(b) After a Serviced Trust Mortgage Loan becomes a Serviced Trust
Defaulted Mortgage Loan, the Special Servicer shall determine the fair value of
the Serviced Trust Mortgage Loan in accordance with the Servicing Standard;
provided, however, that such determination shall be made without taking into
account any effect the restrictions on the sale of such Serviced Trust Mortgage
Loan contained herein may have on the value of such Serviced Trust Defaulted
Mortgage Loan; provided, further, that the Special Servicer shall use reasonable
efforts promptly to obtain an Appraisal with respect to the related Mortgaged
Property unless it has an Appraisal that is less than 12 months old and has no
actual knowledge of, or notice of, any event which in the Special Servicer's
judgment would materially affect the validity of such Appraisal. The Special
Servicer shall make its fair value determination as soon as reasonably
practicable (but in any event within 30 days) after its receipt of such new
Appraisal, if applicable. The Special Servicer will be permitted, from time to
time, to adjust its fair value determination based upon changed circumstances,
new information and other relevant factors, in each instance in accordance with
the Servicing Standard; provided, however, that the Special Servicer shall
update its fair value determination at least once every 90 days; and provided,
further, that absent the Special Servicer having actual knowledge of a material
change in circumstances affecting the value of the related Mortgaged Property,
the Special Servicer shall not be obligated to update such determination. The
Special Servicer shall notify the Trustee, the Master Servicer, each Rating
Agency, the Plurality Subordinate Certificateholder promptly upon its fair value
determination and any adjustment thereto. The Special Servicer shall also
deliver to the Master Servicer and the Plurality Subordinate Certificateholder
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 Serviced Trust Mortgage Loan (such materials are, collectively, the
"Determination Information"). Notwithstanding the foregoing, the Special
Servicer shall not be required to deliver the Determination Information to the
Master Servicer, and shall instead deliver the Determination Information to the
Trustee, if the Master Servicer will not be determining whether the Option Price
represents fair value for the Serviced Trust Defaulted Mortgage Loan, pursuant
to this Section 3.18.
In determining the fair value of any Serviced Trust Defaulted
Mortgage Loan, the Special Servicer shall take into account, among other
factors, the period and amount of the delinquency on such Serviced Trust
Mortgage Loan, the occupancy level and physical condition of the related
Mortgaged Property, the state of the local economy in the area where the
Mortgaged Property is located, and the time and expense associated with a
purchaser's foreclosing on the related Mortgaged Property and the expected
recoveries from pursuing a work-out or foreclosure strategy instead of selling
the Serviced Trust Defaulted Mortgage Loan to the Purchase Option holder. In
addition, the Special Servicer shall refer to all other relevant information
obtained by it or otherwise contained in the related Mortgage File; provided
that the Special Servicer shall take account of any change in circumstances
regarding the related Mortgaged Property known to the Special Servicer that has
occurred subsequent to, and that would, in the Special Servicer's reasonable
judgment, materially affect the value of the related Mortgaged Property
reflected in the most recent related Appraisal. Furthermore, the Special
Servicer shall consider all available objective third-party information obtained
from generally available sources, as well as information obtained from vendors
providing real estate services to the Special Servicer, concerning the market
for distressed real estate loans and the real estate market for the subject
property type in the area where the related Mortgaged Property is located.
(c) Subject to the terms set forth in Section 2.03, in the event a
Serviced Trust Mortgage Loan becomes a Serviced Trust Defaulted Mortgage Loan,
each of the Plurality Subordinate Certificateholder and the Special Servicer
(each, together with their respective assignees, an "Option Holder") shall have
an assignable option (a "Purchase Option") (with respect to any Trust Mortgage
Loan that is part of a Loan Combination, subject to the related Loan Combination
Intercreditor Agreement) to purchase such Serviced Trust Defaulted Mortgage Loan
from the Trust Fund at a price (the "Option Price") equal to (i) the Purchase
Price, if the Special Servicer has not yet determined the fair value of the
Serviced Trust Defaulted Mortgage Loan, or (ii) the fair value of the Serviced
Trust Defaulted Mortgage Loan as determined by the Special Servicer in the
manner described in Section 3.18(b) and in accordance with the Servicing
Standard, if the Special Servicer has made such fair value determination;
provided that, if (A) the Purchase Option is being exercised by an Option Holder
that is an assignee of the Plurality Subordinate Certificateholder that is not
an Affiliate of the Plurality Subordinate Certificateholder, (B) the assignment
of the Purchase Option was to such Option Holder for no material consideration,
and (iii) the Purchase Option is exercised by such Option Holder more than 90
days following a determination of the fair value of the subject Serviced Trust
Defaulted Mortgage Loan, the Option Price shall include a Principal Recovery Fee
payable to the Special Servicer. The Special Servicer shall, promptly after a
Serviced Trust Mortgage Loan becomes a Serviced Trust Defaulted Mortgage Loan,
deliver to the Plurality Subordinate Certificateholder a notice substantially in
the form of Exhibit M-1. Any holder of a Purchase Option may sell, transfer,
assign or otherwise convey its Purchase Option with respect to any Serviced
Trust Defaulted Mortgage Loan to any party at any time after the related
Serviced Trust Mortgage Loan becomes a Serviced Trust Defaulted Mortgage Loan.
The transferor of any Purchase Option shall notify the Trustee, the Certificate
Administrator and the Master Servicer of such transfer and such notice shall
include (i) in the case of the Plurality Subordinate Certificateholder, an
assignment substantially in the form of Exhibit M-3, or (ii) in the case of the
Special Servicer, an assignment substantially in the form of Exhibit M-2.
Notwithstanding the foregoing, the Plurality Subordinate Certificateholder (or
its assignee) shall have the right to exercise its Purchase Option prior to any
exercise of the Purchase Option by the Special Servicer; provided, however, if
the Purchase Option is not exercised by the Plurality Subordinate
Certificateholder or any assignee thereof within 60 days of the fair value
determination being made with respect to the subject Serviced Trust Mortgage
Loan becoming a Trust Defaulted Mortgage Loan, then the Special Servicer (or its
assignee) shall have the right to exercise its Purchase Option prior to any
exercise by the Plurality Subordinate Certificateholder and the Special Servicer
or its assignee may exercise such Purchase Option at any time during the 15 day
period immediately following the expiration of such 60-day period. Following the
expiration of such 15 day period, the Plurality Subordinate Certificateholder
(or its assignee) shall again have the right to exercise its Purchase Option
prior to any exercise of the Purchase Option by the Special Servicer. If not
exercised earlier, the Purchase Option with respect to any Serviced Trust
Defaulted Mortgage Loan will automatically terminate (i) once the related
Serviced Trust Defaulted Mortgage Loan is no longer a Serviced Trust Defaulted
Mortgage Loan; provided, however, that if such Serviced Trust Mortgage Loan
subsequently becomes a Serviced Trust Defaulted Mortgage Loan, the related
Purchase Option shall again be exercisable, (ii) upon the acquisition, by or on
behalf of the Trust Fund, of title to the related Mortgaged Property through
foreclosure or deed in lieu of foreclosure or (iii) the modification or pay-off,
in full or at a discount, of such Serviced Trust Defaulted Mortgage Loan in
connection with a workout. In addition, the Purchase Option with respect to a
Serviced Trust Defaulted Mortgage Loan held by any Person will terminate upon
the exercise of the Purchase Option and consummation of the purchase by any
other holder of a Purchase Option.
(d) [RESERVED].
(e) Upon receipt of notice from the Special Servicer indicating that
a Serviced Trust Mortgage Loan has become a Serviced Trust Defaulted Mortgage
Loan, the holder (whether the original grantee of such option or any subsequent
transferee) of the Purchase Option may exercise the Purchase Option by providing
the Master Servicer and the Trustee, written notice thereof (the "Purchase
Option Notice"), which notice shall identify the Person that, on its own or
through an Affiliate, will acquire the related Serviced Trust Mortgage Loan upon
closing and shall specify a cash exercise price at least equal to the Option
Price. The Purchase Option Notice shall be delivered in the manner specified in
Section 11.05. The exercise of any Purchase Option pursuant to this clause (e)
shall be irrevocable; provided that the assignor of the Purchase Option shall
have no liability to the Trust Fund or any other party hereto for the failure of
its third party assignee to close the sale of the Serviced Trust Defaulted
Mortgage Loan after its exercise of the Purchase Option and upon such failure,
the Purchase Option shall revert to the Option Holder as provided herein as if
the Purchase Option had not been exercised, and the Special Servicer shall
pursue against such assignee whatever remedies it may have against the assignee.
(f) If the Special Servicer or the Plurality Subordinate
Certificateholder, or any of their respective Affiliates, is identified in the
Purchase Option Notice as the Person expected to acquire the related Serviced
Trust Mortgage Loan, and the Option Price is based upon the Special Servicer's
fair value determination, then the Master Servicer (or, if the Master Servicer
and the Special Servicer are the same Person, the Trustee) shall determine
whether the Special Servicer's determination of the Option Price represents fair
value for the Serviced Trust Defaulted Mortgage Loan, in the manner set forth in
Section 3.18(b). In such event, the Special Servicer shall promptly deliver to
the Master Servicer (or the Trustee, if the Trustee is making the determination
as contemplated in the preceding sentence) the Determination Information,
including information regarding any change in circumstance regarding the
Serviced Trust Defaulted Mortgage Loan known to the Special Servicer that has
occurred subsequent to, and that would materially affect the value of the
related Mortgaged Property reflected in, the most recent related Appraisal.
Notwithstanding the foregoing, and if the Special Servicer has not already done
so, the Master Servicer (or the Trustee, if the Trustee is making the
determination as contemplated in the preceding sentences) may (at its option)
designate an Independent Appraiser or other Independent expert of recognized
standing having experience in evaluating the value of defaulted mortgage loans,
selected with reasonable care by the Master Servicer or the Trustee, as the case
may be, to confirm that the Special Servicer's determination of the Option Price
represents fair value for the Serviced Trust Defaulted Mortgage Loan (which
opinion shall be based on a review, analysis and evaluation of the Determination
Information, and to the extent such an Independent Appraiser or third party
deems any such Determination Information to be defective, incorrect,
insufficient or unreliable, such Person may base its opinion on such other
information it deems reasonable or appropriate). In that event, the Master
Servicer or the Trustee, as the case may be, absent manifest error, may
conclusively rely on the opinion of any such Person. The costs of all
appraisals, inspection reports and opinions of value incurred by the Special
Servicer, the Master Servicer, the Trustee or any such third party pursuant to
this paragraph shall be advanced by the Master Servicer (or the Trustee, if
applicable) and shall constitute, and be reimbursable as, Servicing Advances,
unless such Servicing Advance would be a Nonrecoverable Advance, in which case
such cost shall be an expense of the Trust. In addition, the Master Servicer
(or, if applicable, the Trustee) shall be entitled to receive out of the
Collection Account a fee in the amount of $2,500, for the initial confirmation
of the Special Servicer's Option Price determination (but no fee for any
subsequent confirmation) that is made by it with respect to any Serviced Trust
Defaulted Mortgage Loan, in accordance with this Section 3.18(f).
Notwithstanding anything contained in this Section 3.18(f) to the
contrary, if the Special Servicer, the Plurality Subordinate Certificateholder
or any of their respective Affiliates, is identified in the Purchase Option
Notice as the Person expected to acquire the related Serviced Trust Mortgage
Loan, and the Option Price is based upon the Special Servicer's fair value
determination, and the Master Servicer and the Special Servicer are Affiliates,
the Trustee shall determine whether the Option Price represents fair value for
the Serviced Trust Defaulted Mortgage Loan, in the manner set forth in Section
3.18(b) and as soon as reasonably practicable but in any event within 30 days
(except as such period may be extended as set forth in this paragraph) of its
receipt of the Purchase Option Notice and Determination Information from the
Special Servicer. In determining whether the Option Price represents the fair
value of such Serviced Trust Defaulted Mortgage Loan, the Trustee may obtain an
opinion as to the fair value of such Serviced Trust Defaulted Mortgage Loan,
taking into account the factors set forth in Section 3.18(b), from an
Independent Appraiser or other Independent expert of recognized standing having
experience in evaluating the value of defaulted mortgage loans which opinion
shall be based on a review, analysis and evaluation of the Determination
Information, and to the extent such an Independent Appraiser or third party
deems any such Determination Information to be defective, incorrect,
insufficient or unreliable, such Person may base its opinion on such other
information it deems reasonable or appropriate, and absent manifest error, the
Trustee may conclusively rely on the opinion of any such Person which was chosen
by the Trustee with reasonable care. Notwithstanding the 30 day time period
referenced above in this paragraph, the Trustee will have an additional 15 days
to make a fair value determination if the Person referenced in the immediately
preceding sentence has determined that the Determination Information is
defective, incorrect, insufficient or unreliable. The reasonable costs of all
appraisals, inspection reports and opinions of value, reasonably incurred by the
Trustee or any such third party pursuant to this paragraph shall be advanced by
the Master Servicer (or the Trustee, if applicable) and shall constitute, and be
reimbursable as, Servicing Advances, unless such Servicing Advance would be a
Nonrecoverable Advance, in which case such cost shall be an expense of the
Trust. In connection with the Trustee's determination of fair value the Special
Servicer shall deliver to the Trustee the Determination Information for the use
of the Trustee or any such third party.
In the event a designated third party determines that the Option
Price is less than the fair value of the Serviced Trust Defaulted Mortgage Loan,
such party shall provide its determination, together will all information and
reports it relied upon in making such determination, to the Special Servicer,
the Master Servicer or the Trustee, as the case may be, and the Special Servicer
shall then adjust its fair value determination and, consequently, the Option
Price, pursuant to Section 3.18(b). The Special Servicer shall promptly provide
written notice of any adjustment of the Option Price to the Option Holder whose
Purchase Option has been declared effective pursuant to Section 3.18(e) above.
Upon receipt of such notice, such Option Holder shall have three (3) Business
Days to (i) accept the Option Price as adjusted and proceed in accordance with
Section 3.18(g) below, or (ii) reject the Option Price as adjusted, in which
case such Option Holder shall not be obligated to close the purchase of the
Serviced Trust Defaulted Mortgage Loan. Upon notice from such Option Holder,
that it rejects the Option Price as adjusted, the Special Servicer and the
Trustee shall provide the notices described in Section 3.18(h) below and
thereafter any Option Holder may exercise its purchase option in accordance with
this Section 3.18, at the Option Price as adjusted.
(g) The Option Holder whose Purchase Option is declared effective
pursuant to Section 3.18(e) above shall be required to pay the purchase price
specified in its Purchase Option Notice to the Master Servicer within 10
Business Days of its receipt of the Master Servicer's notice confirming that the
exercise of its Purchase Option is effective. Upon receipt of a Request for
Release from the Master Servicer specifying the date for closing the purchase of
the related Serviced Trust Defaulted Mortgage Loan, and the purchase price to be
paid therefor, the Trustee shall deliver at such closing for release to or at
the direction of such Option Holder, the related Mortgage File, and shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, as shall be provided to it by such Option Holder and are
reasonably necessary to vest in the purchaser or any designee thereof the
ownership of such Serviced Trust Mortgage Loan. In connection with any such
purchase by any Person other than it, the Special Servicer shall deliver the
related Mortgage File to or at the direction of the purchaser. In any case, the
Master Servicer shall deposit the purchase price (except that portion of any
purchase price constituting Gain-on-Sale Proceeds which shall be deposited in
the Gain-on-Sale Reserve Account) into the Collection Account within one (1)
Business Day following receipt.
(h) The Special Servicer shall immediately notify the Trustee, the
Certificate Administrator and the Master Servicer upon the holder of the
effective Purchase Option's failure to remit the purchase price specified in its
Purchase Option Notice pursuant to this Section 3.18(h). Thereafter, the Trustee
shall notify each Option Holder of such failure and any Option Holder may then
exercise its purchase option in accordance with this Section 3.18.
(i) Unless and until the Purchase Option with respect to a Serviced
Trust Defaulted Mortgage Loan is exercised, the Special Servicer shall pursue
such other resolution strategies available hereunder with respect to such
Serviced Trust Defaulted Mortgage Loan, including, without limitation, workout
and foreclosure, as the Special Servicer may deem appropriate consistent with
the Servicing Standard; provided, however, the Special Servicer will not be
permitted to sell the Serviced Trust Defaulted Mortgage Loan other than in
connection with the exercise of the related Purchase Option.
(j) In the event that title to any Administered REO Property is
acquired by the Trust in respect of any Serviced Trust Defaulted Mortgage Loan,
the deed or certificate of sale shall be issued to the Trust, the Trustee or to
its nominees. The Special Servicer, after notice to the Controlling Class
Representative, shall use its reasonable best efforts to sell any Administered
REO Property as soon as practicable in accordance with Section 3.16(a). If the
Special Servicer on behalf of the Trustee has not received an REO Extension or
an Opinion of Counsel described in Section 3.16(a) and the Special Servicer is
not able to sell such Administered REO Property within the period specified
above, or if an REO Extension has been granted and the Special Servicer is
unable to sell such Administered REO Property within the extended time period,
the Special Servicer shall, after consultation with the Controlling Class
Representative, before the end of such period or extended period, as the case
may be, auction the Administered REO Property to the highest bidder (which may
be the Special Servicer) in accordance with the Servicing Standard. The Special
Servicer shall give the Controlling Class Representative, the Master Servicer,
and the Trustee (and, in the case of a Loan Combination Mortgaged Property, the
related Non-Trust Noteholder(s)) not less than five days' prior written notice
of its intention to sell any Administered REO Property, and in respect of such
sale, the Special Servicer shall offer such Administered REO Property in a
commercially reasonable manner. Where any Interested Person is among those
bidding with respect to an Administered REO Property, the Special Servicer shall
require that all bids be submitted in writing and be accompanied by a refundable
deposit of cash in an amount equal to 5% of the bid amount. No Interested Person
shall be permitted to purchase the Administered REO Property at a price less
than the Purchase Price; and provided, further, that if the Special Servicer
intends to bid on any Administered REO Property, (i) the Special Servicer shall
notify the Trustee of such intent, (ii) the Trustee shall promptly obtain, at
the expense of the Trust Fund, an Appraisal of such Administered REO Property
and (iii) the Special Servicer shall not bid less than the greater of (A) the
fair market value set forth in such Appraisal or (B) the Purchase Price.
(k) Subject to the REMIC Provisions, the Special Servicer shall act
on behalf of the Trust in negotiating and taking any other action necessary or
appropriate in connection with the sale of any Administered REO Property or the
exercise of a Purchase Option, including the collection of all amounts payable
in connection therewith. Notwithstanding anything to the contrary herein,
neither the Trustee, in its individual capacity, nor any of its Affiliates may
bid for or purchase any Administered REO Property or purchase any Serviced Trust
Defaulted Mortgage Loan. Any sale of a Serviced Trust Defaulted Mortgage Loan
(pursuant to a Purchase Option) or an Administered REO Property shall be without
recourse to, or representation or warranty by, the Trustee, the Certificate
Administrator, the Depositor, the Special Servicer, the Master Servicer, any
Mortgage Loan Seller or the Trust. None of the Special Servicer, the Master
Servicer, the Depositor, the Trustee or the Certificate Administrator shall have
any liability to the Trust or any Certificateholder with respect to the price at
which a Serviced Trust Defaulted Mortgage Loan is sold if the sale is
consummated in accordance with the terms of this Agreement.
(l) Upon exercise of a Purchase Option, the holder of such Purchase
Option shall be required to pay the purchase price specified in its Purchase
Option Notice to the Special Servicer within 10 Business Days of exercising its
Purchase Option. The proceeds of any sale of a Serviced Trust Defaulted Mortgage
Loan, after deduction of the expenses of such sale incurred in connection
therewith, shall be deposited by the Special Servicer in the Collection Account.
(m) Notwithstanding anything herein to the contrary, the Special
Servicer shall not take or refrain from taking any action pursuant to
instructions from the Controlling Class Representative that would cause it to
violate applicable law or any term or provision of this Agreement, including the
REMIC Provisions and the Servicing Standard.
(n) The amount paid for a Serviced Trust Defaulted Mortgage Loan or
related Administered REO Property purchased under this Agreement shall be
deposited into the Collection Account. Upon receipt of an Officer's Certificate
from the Master Servicer to the effect that such deposit has been made, the
Trustee shall execute and deliver such instruments of transfer or assignment, in
each case without recourse, as shall be provided to it and are reasonably
necessary to vest in the purchaser of such Serviced Trust Defaulted Mortgage
Loan or related Administered REO Property ownership of the Serviced Trust
Defaulted Mortgage Loan or Administered REO Property. The Custodian, upon
receipt of a Request for Release, shall release or cause to be released to the
Master Servicer or Special Servicer the related Mortgage File. In connection
with any such purchase, the Special Servicer shall deliver the related Servicing
File to the purchaser of a Serviced Trust Defaulted Mortgage Loan or related
Administered REO Property.
SECTION 3.19. Additional Obligations of Master Servicer.
(a) The Master Servicer shall deposit in the Collection Account on
each P&I Advance Date (prior to any transfer of funds from the Collection
Account to the Distribution Account on such date), without any right of
reimbursement therefor with respect to those Trust Mortgage Loans that were, in
each such case, subject to a Principal Prepayment during the most recently ended
Collection Period (other than Principal Prepayments made out of Insurance
Proceeds or Liquidation Proceeds and other than Casualty/Condemnation Principal
Prepayments) creating a Prepayment Interest Shortfall, an aggregate amount equal
to the lesser of (i) the amount of the related Prepayment Interest Shortfalls in
respect of the Trust Mortgage Loans and (ii) the sum of (A) that portion of the
Master Servicing Fees on the Mortgage Pool that represents an accrual at a rate
of 0.01% per annum and (B) the total amount of Prepayment Interest Excesses that
were collected during the related Collection Period; provided, however, that if
a Prepayment Interest Shortfall occurs as a result of the Master Servicer's
allowing the related Mortgagor to deviate from the terms of the related Mortgage
Loan documents regarding principal prepayments (other than (x) subsequent to a
material default under the related Mortgage Loan documents, (y) pursuant to
applicable law or a court order, or (z) at the request or with the consent of
the Special Servicer or the Controlling Class Representative) (other than in
connection with Principal Prepayments made out of Insurance Proceeds or
Liquidation Proceeds and other than Casualty/Condemnation Principal Prepayments)
then, for purposes of determining the payment that the Master Servicer is
required to make to cover that Prepayment Interest Shortfall, the reference to
"Master Servicing Fee" in clause (A) above shall be construed to include (1) the
entire Master Servicing Fees payable to the Master Servicer with respect to the
related Collection Period, inclusive of any portion payable to a third-party
primary servicer and (2) the amount of any investment income earned by the
Master Servicer on the related Principal Prepayment while on deposit in the
Collection Account. Following the payments made by the Master Servicer pursuant
to the preceding paragraph, the Master Servicer shall apply any remaining
Prepayment Interest Excesses to offset any Casualty/Condemnation Interest
Shortfall incurred with respect to any Trust Mortgage Loan during the subject
Collection Period.
Except as provided in the preceding paragraphs, no other
compensation to the Master Servicer shall be available to cover Prepayment
Interest Shortfalls. The Master Servicer's obligation to make any particular
deposit in respect of any Collection Period as set forth in this Section 3.19(a)
shall not, in the absence of default under this Section 3.19(a), carry over to
any subsequent Collection Period.
Without the consent of the Special Servicer, the Master Servicer
shall not allow Mortgagor to deviate from the terms of the related Mortgage Loan
Documents regarding voluntary Principal Prepayments (other than with respect to
Principal Prepayments made out of Insurance Proceeds or Liquidation Proceeds and
other than Casualty/Condemnation Principal Prepayments) if a Prepayment Interest
Shortfall, in excess of the amount required to be deposited by the Master
Servicer in the Collection Account pursuant to the penultimate sentence of the
second preceding paragraph, would occur as a result of such deviation.
(b) The Master Servicer shall, as to each Serviced Mortgage Loan
that is secured by the interest of the related Mortgagor under a Ground Lease,
promptly (and in any event within 60 days of the Closing Date) notify the
related ground lessor in writing of the transfer of such Serviced Mortgage Loan
to the Trust Fund pursuant to this Agreement and inform such ground lessor that
any notices of default under the related Ground Lease should thereafter be
forwarded to the Master Servicer. The costs and expenses of any modifications to
Ground Leases shall be paid by the related Mortgagor.
(c) The Master Servicer and the Special Servicer shall each be
responsible for providing (i) to each Non-Trust Noteholder such notices
regarding defaults and events of default with respect to the related Loan
Combination as are required from the holder of the related Trust Mortgage Loan
that is part the related Loan Combination under the related Loan Combination
Intercreditor Agreement, and (ii) to any lender of related mezzanine debt as may
be required from the Trust, as holder of a Trust Mortgage Loan, under any
related co-lender, intercreditor or similar agreement.
SECTION 3.20. Modifications, Waivers, Amendments and Consents.
(a) The Special Servicer may (consistent with the Servicing
Standard) agree to any modification, waiver or amendment of any term of, extend
the maturity of, defer or forgive interest (including Penalty Interest and
Additional Interest) on and principal of, defer or forgive late payment charges,
Prepayment Premiums and Yield Maintenance Charges on, permit the release,
addition or substitution of collateral securing, and/or permit the release,
addition or substitution of the Mortgagor on or any guarantor of, any Serviced
Mortgage Loan, and/or provide consents with respect to any leasing activity at a
Mortgaged Property securing any Serviced Mortgage Loan without the consent of
the Trustee or any Certificateholder; provided that the Special Servicer's right
to do so shall be subject to Section 3.08, Section 6.11 and Section 6.12 (and,
in the case of a Loan Combination, subject to the terms of the related Loan
Combination Intercreditor Agreement) and, further, to the following subsections
of this Section 3.20.
(b) All modifications, waivers or amendments of any Serviced
Mortgage Loan shall be in writing and shall be considered and effected in
accordance with the Servicing Standard. Neither the Master Servicer nor the
Special Servicer, as applicable, shall make or permit or consent to, as
applicable, any modification, waiver or amendment of any term of any Serviced
Mortgage Loan that would result in an Adverse REMIC Event. The Master Servicer
or Special Servicer shall determine and may conclusively rely on an Opinion of
Counsel (which Opinion of Counsel shall be an expense of the Trust Fund to the
extent not paid by the related Mortgagor) to the effect that such modification,
waiver or amendment would not (1) effect an exchange or reissuance of the
Serviced Mortgage Loan under Treasury Regulations Section 1.860G-2(b) of the
Code, (2) cause either of REMIC I or REMIC II to fail to qualify as a REMIC
under the Code or result in the imposition of any tax on "prohibited
transactions" or "contributions" after the Startup Day under the REMIC
Provisions, or (3) adversely affect the status of any of Grantor Trust A-3FL,
Grantor Trust A-4FC or Grantor Trust Z under the Code.
(c) The Special Servicer, on behalf of the Trust Fund, may agree or
consent to (or permit the Master Servicer to agree or consent to) any
modification, waiver or amendment of any term of any Serviced Mortgage Loan that
would:
(i) affect the amount or timing of any related payment of principal,
interest or other amount (including Prepayment Premiums or Yield
Maintenance Charges, but excluding Penalty Interest and amounts payable as
additional servicing compensation) payable thereunder- (including, subject
to the discussion in the following paragraph, any related Balloon
Payment); or
(ii) affect the obligation of the related Mortgagor to pay a
Prepayment Premium or Yield Maintenance Charge or permit a Principal
Prepayment during any period in which the related Mortgage Note prohibits
Principal Prepayments; or
(iii) in the judgment of the Special Servicer, materially impair the
security for such Mortgage Loan or reduce the likelihood of timely payment
of amounts due thereon;
only if (A) a material default on the Serviced Mortgage Loan has occurred or, in
the Special Servicer's judgment, a material default on the Serviced Mortgage
Loan is reasonably foreseeable, and (B) the modification, waiver, amendment or
other action is reasonably likely to produce a greater recovery to the
Certificateholders (and, in the case of a Loan Combination, the related
Non-Trust Noteholder(s)), as a collective whole, on a present value basis, than
would liquidation. In the case of every other modification, waiver or amendment,
the Special Servicer may conclusively rely on an Opinion of Counsel (which
Opinion of Counsel shall be an expense of the Trust Fund to the extent not paid
by the related Mortgagor) to the effect that such modification, waiver or
amendment would not (1) effect an exchange or reissuance of the Serviced
Mortgage Loan under Treasury Regulations Section 1.860G-2(b) of the Code, (2)
cause either of REMIC I or REMIC II to fail to qualify as a REMIC under the Code
or result in the imposition of any tax on "prohibited transactions" or
"contributions" after the Startup Day under the REMIC Provisions, or (3)
adversely affect the status of Grantor Trust Z under the Code.
In addition, subject to the third paragraph of this Section 3.20(c),
the Special Servicer may extend the date on which any Balloon Payment is
scheduled to be due in respect of a Specially Serviced Mortgage Loan if the
conditions set forth in the proviso to the prior paragraph are satisfied and the
Special Servicer has obtained an Appraisal of the related Mortgaged Property in
connection with such extension, which Appraisal supports the determination of
the Special Servicer contemplated by clause (B) of the proviso to the
immediately preceding paragraph.
In no event will the Master Servicer or Special Servicer (i) extend
the maturity date of a Serviced Mortgage Loan beyond a date that is two years
prior to the Rated Final Distribution Date and (ii) if the Serviced Mortgage
Loan is secured by a Ground Lease (and not by the corresponding fee simple
interest), extend the maturity date of such Serviced Mortgage Loan beyond a date
which is less than 20 years (or, to the extent consistent with the Servicing
Standard, giving due consideration to the remaining term of the Ground Lease,
and with the consent of the Controlling Class Representative, 10 years) prior to
the expiration of the term of such Ground Lease including any unilateral options
to extend such term.
The determination of the Special Servicer contemplated by clause (B)
of the proviso to the first paragraph of this Section 3.20(c) shall be evidenced
by an Officer's Certificate to such effect delivered to the Certificate
Administrator, the Trustee, the Master Servicer and, in the case of a Loan
Combination, the related Non-Trust Noteholder(s) and describing in reasonable
detail the basis for the Special Servicer's determination. The Special Servicer
shall append to such Officer's Certificate any information including but not
limited to income and expense statements, rent rolls, property inspection
reports and appraisals that support such determination.
(d) Except as expressly contemplated by the related Mortgage Loan
documents, the Special Servicer shall not consent to the Master Servicer's
releasing, which consent shall be deemed given if not denied in writing within
10 Business Days (or, if the Controlling Class Representative is entitled to
object pursuant to Section 6.11), any real property collateral securing an
outstanding Serviced Mortgage Loan, except as provided in Section 3.09 or
3.20(e), or except in connection with a permitted defeasance, or except where a
Serviced Mortgage Loan (or, in the case of a Crossed Loan Group, where such
entire Crossed Loan Group) is satisfied, or except in the case of a release of
real property collateral provided the Rating Agencies have been notified in
writing and, with respect to a Serviced Mortgage Loan that is not a Specially
Serviced Mortgage Loan, (A) either (1) such release will not, in the reasonable
judgment of the Special Servicer (exercised in accordance with the Servicing
Standard), materially and adversely affect the net operating income being
generated by or the then-current use of the related Mortgaged Property, or (2)
there is a corresponding principal pay down of such Serviced Mortgage Loan in an
amount at least equal to the appraised value of the collateral to be released
(or substitute real property collateral with an appraised value at least equal
to that of the collateral to be released, is delivered), (B) the release does
not materially adversely affect the adequacy of the remaining Mortgaged Property
(together with any substitute real property collateral), in the reasonable
judgment of the Special Servicer (exercised in accordance with the Servicing
Standard), as security for the Serviced Mortgage Loan and (C) if the real
property collateral to be released has an appraised value in excess of
$1,500,000, such release would not, in and of itself, result in an Adverse
Rating Event (as confirmed in writing to the Trustee by each Rating Agency).
(e) Notwithstanding anything in this Section 3.20, Section 6.11 or
Section 6.12 to the contrary, the Master Servicer shall not be required to seek
the consent of, or provide prior notice to, the Special Servicer, any
Certificateholder or the Controlling Class Representative or obtain any
confirmation of the Certificate ratings from the Rating Agencies in order to
approve the following modifications, waivers or amendments of the Serviced
Mortgage Loans (but, in the case of the actions described in clauses (iii) and
(iv) of this sentence, shall notify the Controlling Class Representative
thereof):
(i) approving routine leasing activity with respect to any lease for
less than the lesser of (A) 15,000 square feet and (B) 20% of the related
Mortgaged Property; provided that (1) no subordination, non-disturbance
and attornment agreement (an "SNDA") exists with respect to such lease and
(2) no such lease is a Ground Lease; and provided further that the Master
Servicer shall not grant or approve (but shall forward to the Special
Servicer for its approval) any request for (or any waiver, consent,
approval, amendment or modification in connection with) an SNDA or
approval of a lease that contains an SNDA;
(ii) approving any waiver affecting the timing of receipt of
financial statements from any Mortgagor; provided that such financial
statements are delivered no less than quarterly and within 60 days of the
end of the calendar quarter;
(iii) approving annual budgets for the related Mortgaged Property;
provided that no such budget (A) provides for the payment of operating
expenses in an amount equal to more than 110% of the amounts budgeted
therefor for the prior year or (B) provides for the payment of any
material expenses to any affiliate of the Mortgagor (other than the
payment of a management fee to any property manager if such management fee
is no more than the management fee in effect on the Cut-off Date);
(iv) subject to other restrictions herein regarding Principal
Prepayments, waiving any provision of a Serviced Mortgage Loan requiring a
specified number of days notice prior to a Principal Prepayment;
(v) approving modifications, consents or waivers (other than those
set forth in Section 3.20(c)) in connection with a defeasance permitted by
the terms of the related Serviced Mortgage Loan if the Master Servicer
receives an Opinion of Counsel (which Opinion of Counsel shall be an
expense of the Mortgagor) to the effect that such modification, waiver or
consent would not cause either REMIC I or REMIC II to fail to qualify as a
REMIC under the Code or result in a "prohibited transaction" under the
REMIC Provisions;
(vi) approving consents with respect to non-material right-of-ways
and non-material easements and consent to subordination of the related
Serviced Mortgage Loan to such non-material rights-of-way or easements;
(vii) any non-material modifications, waivers or amendments not
provided for in clauses (i) through (vi) above, which are necessary to
cure any ambiguities or to correct scrivener's errors in the terms of the
related Serviced Mortgage Loan; and
provided that any such modification, waiver or amendment, or agreeing to any
such modification, waiver or amendment, (w) would not in any way affect a
payment term of the Certificates, (x) would not constitute a "significant
modification" of such Serviced Mortgage Loan pursuant to Treasury Regulations
Section 1.860G-2(b) and would not otherwise constitute an Adverse REMIC Event
with respect to any REMIC or an Adverse Grantor Trust Event with respect to any
of Grantor Trust A-3FL, Grantor Trust A-4FC or Grantor Trust Z, (y) would be
consistent with the Servicing Standard, and (z) shall not violate the terms,
provisions or limitations of this Agreement or any other document contemplated
hereby; and provided, however, in the case of any A-Note Trust Mortgage Loan,
the Master Servicer shall provide written notice of such action to the related
B-Noteholder(s); and provided, further, that the Master Servicer shall promptly
notify the Special Servicer of any requests not subject to this Section 3.20(e)
for which the Special Servicer is responsible pursuant to this Section 3.20 and
shall deliver to the Special Servicer (which delivery may be by electronic
transmission in a format acceptable to the Master Servicer and Special Servicer)
a copy of the request, and all information in the possession of the Master
Servicer that the Special Servicer may reasonably request related thereto. For
the avoidance of doubt, and without limiting the generality of the foregoing,
any request for the disbursement of earnouts or holdback amounts with respect to
any Mortgage Loan received by the Master Servicer shall be submitted to the
Special Servicer for approval (which approval shall be deemed given if the
request is not denied by the Special Servicer in writing to the Master Servicer
within ten (10) Business Days of the Special Servicer's receipt of such
request). For purposes of this Agreement, "disbursement of earnouts or holdback
amounts" shall mean the disbursement or funding to a borrower of previously
unfunded, escrowed or otherwise reserved portions of the loan proceeds of the
applicable Mortgage Loan until certain conditions precedent thereto relating to
the satisfaction of performance-related criteria (i.e., project reserve
thresholds, lease-up requirements, sales requirements, etc.), as set forth in
the applicable loan documents, have been satisfied. Mortgage Loans with such
earnout reserves or holdbacks are indicated on the Mortgage Loan Schedule.
(f) Any payment of interest that is deferred pursuant to any
modification, waiver or amendment permitted hereunder, shall not, for purposes
hereof, including, without limitation, calculating monthly distributions to
Certificateholders, be added to the unpaid principal balance or Stated Principal
Balance of the related Serviced Mortgage Loan, notwithstanding that the terms of
such modification, waiver or amendment so permit. The foregoing shall in no way
limit the Special Servicer's ability to charge and collect from the Mortgagor
costs otherwise collectible under the terms of the related Mortgage Note and
this Agreement together with interest thereon.
(g) The Special Servicer or, the Master Servicer may, as a condition
to granting any request by a Mortgagor for consent, modification, waiver or
indulgence or any other matter or thing, the granting of which is within its
discretion pursuant to the terms of the instruments evidencing or securing the
related Serviced Mortgage Loan and is permitted by the terms of this Agreement,
require that such Mortgagor pay to it (i) as additional servicing compensation,
a reasonable or customary fee for the additional services performed in
connection with such request, provided such fee would not itself be a
"significant modification" pursuant to Treasury Regulations Section
1.1001-3(e)(2) and (ii) any related costs and expenses incurred by it. In no
event shall the Special Servicer be entitled to payment for such fees or
expenses unless such payment is collected from the related Mortgagor.
(h) The Master Servicer and Special Servicer shall notify each
other, the Certificate Administrator, the Trustee, the Controlling Class
Representative and, in the case of a Loan Combination, the related Non-Trust
Noteholder(s), in writing, of any modification, waiver or amendment of any term
of any Serviced Mortgage Loan (including fees charged the Mortgagor) and the
date thereof, and shall deliver to the Custodian for deposit in the related
Mortgage File, (in the case of the Special Servicer, with a copy to the Master
Servicer), an original counterpart of the agreement relating to such
modification, waiver or amendment, promptly (and in any event within 10 Business
Days) following the execution thereof. Copies of each agreement whereby any such
modification, waiver or amendment of any term of any Serviced Mortgage Loan is
effected shall be made available for review upon prior request during normal
business hours at the offices of the Master Servicer pursuant to Section 3.15(a)
hereof.
(i) With respect to each Serviced Mortgage Loan that provides for
defeasance, the Master Servicer shall, to the extent permitted by the terms of
such Serviced Mortgage Loan, require the related Mortgagor (i) to provide
replacement collateral consisting of U.S. government securities within the
meaning of Treasury Regulations Section 1.860G-2(a)(8)(i) in an amount
sufficient to make all scheduled payments under the Serviced Mortgage Loan (or
defeased portion thereof) when due (and assuming, in the case of an ARD Loan, to
the extent consistent with the related Mortgage Loan documents, that such
Serviced Mortgage Loan matures on its Anticipated Repayment Date), (ii) to
deliver a certificate from an independent certified public accounting firm
certifying that the replacement collateral is sufficient to make such payments,
(iii) at the option of the Master Servicer, to designate a single purpose entity
(which may be a subsidiary of the Master Servicer established for the purpose of
assuming all defeased Serviced Mortgage Loans) to assume the Serviced Mortgage
Loan (or defeased portion thereof) and own the defeasance collateral, (iv) to
implement such defeasance only after the second anniversary of the Closing Date,
(v) to provide an Opinion of Counsel that the Trustee has a perfected, first
priority security interest in the new collateral (subject to bankruptcy,
insolvency and similar standard exceptions), and (vi) in the case of a partial
defeasance of the Serviced Mortgage Loan, to defease a principal amount equal to
at least 125% of the allocated loan amount for the Serviced Mortgaged Property
or Properties to be released. If the subject Serviced Mortgage Loan is not a
Significant Mortgage Loan and if either the terms of the subject Serviced
Mortgage Loan permit the Master Servicer to impose the foregoing requirements or
the Master Servicer satisfies such requirements on its own, then confirmation
that such defeasance will not result in an Adverse Rating Event is not required
from the Rating Agencies. In such case, the Master Servicer shall provide the
Rating Agencies and the Controlling Class Representative with notice that the
foregoing requirements have been met with respect to the subject Serviced
Mortgage Loan. However, if the subject Serviced Mortgage Loan is a Significant
Mortgage Loan or if the terms of the subject Serviced Mortgage Loan do not
permit the Master Servicer to impose such requirements and the Master Servicer
does not satisfy such requirements on its own, then the Master Servicer shall so
notify the Rating Agencies and the Controlling Class Representative and, in the
case of the a Loan Combination, the related Non-Trust Noteholder(s)), as
applicable and, so long as such a requirement would not violate applicable law
or the Servicing Standard, obtain a confirmation from each Rating Agency that
such defeasance will not result in an Adverse Rating Event. Subject to the
related Mortgage Loan documents and applicable law, the Master Servicer shall
not execute a defeasance unless (a) the subject Serviced Mortgage Loan requires
the Mortgagor to pay all Rating Agency fees associated with defeasance (if
Rating Agency confirmation of no-Adverse Rating Event is a specific condition
thereto) and all expenses associated with defeasance or other arrangements for
payment of such costs are made at no expense to the Trust Fund or the Master
Servicer (provided, however, that in no event shall such proposed "other
arrangements" result in any liability to the Trust Fund including any
indemnification of the Master Servicer or the Special Servicer which may result
in legal expenses to the Trust Fund), and (b) the Mortgagor is required to
provide or the Master Servicer receives from Independent counsel at the
Mortgagor's expense all Opinions of Counsel, including Opinions of Counsel that
the defeasance will not cause an Adverse REMIC Event or an Adverse Grantor Trust
Event and that the Mortgage Loan documents are fully enforceable in accordance
with their terms (subject to bankruptcy, insolvency and similar standard
exceptions), and any applicable rating confirmations. In addition, if in
connection with a defeasance of any Serviced Mortgage Loan the applicable
Mortgage Loan Seller bears the costs and expenses associated with such
defeasance in accordance with the terms of the applicable Mortgage Loan Purchase
Agreement, any costs and expenses subsequently recovered by the Master Servicer
from the related Mortgagor in respect of such defeasance shall be promptly
remitted by the Master Servicer to the applicable Mortgage Loan Seller.
Subsequent to the second anniversary of the Closing Date, to the
extent that the Master Servicer can, in accordance with the related Mortgage
Loan documents, require defeasance of any Serviced Mortgage Loan in lieu of
accepting a prepayment of principal thereunder, including a prepayment of
principal accompanied by a Prepayment Premium or Yield Maintenance Charge, the
Master Servicer shall, to the extent it is consistent with the Servicing
Standard, require such defeasance, provided that the conditions set forth in
clauses (i) through (vi) of the first sentence of the immediately preceding
paragraph have been satisfied. Notwithstanding the foregoing, if at any time, a
court with jurisdiction in the matter shall hold that the related Mortgagor may
obtain a release of the subject Mortgaged Property but is not obligated to
deliver the full amount of the defeasance collateral contemplated by the related
Mortgage Loan documents (or cash sufficient to purchase such defeasance
collateral), then the Master Servicer shall (i) if consistent with the related
Mortgage Loan documents, refuse to allow the defeasance of the Serviced Mortgage
Loan or (ii) if the Master Servicer cannot so refuse and if the related
Mortgagor has delivered cash to purchase defeasance collateral, the Master
Servicer shall either (A) to the extent of the cash delivered by the Mortgagor,
purchase defeasance collateral or (B) prepay the Serviced Mortgage Loan, in
either case, in accordance with the Servicing Standard.
For purposes of this paragraph, a "single purpose entity" shall mean
a Person, other than an individual, whose organization documents provide as
follows: it is formed solely for the purpose of owning and operating a single
property, assuming one or more Serviced Mortgage Loans (or, in the case of a
Loan Combination, the Loan Combination) and owning and pledging the related
Defeasance Collateral; it may not engage in any business unrelated to such
property and the financing thereof; it does not have and may not own any assets
other than those related to its interest in the property or the financing
thereof and may not incur any indebtedness other than as permitted by the
related Mortgage; it shall maintain its own books, records and accounts, in each
case which are separate and apart from the books, records and accounts of any
other person; it shall hold regular meetings, as appropriate, to conduct its
business, and shall observe all entity-level formalities and record keeping; it
shall conduct business in its own name and use separate stationery, invoices and
checks; it may not guarantee or assume the debts or obligations of any other
person; it shall not commingle its assets or funds with those of any other
person; it shall pay its obligations and expenses from its own funds and
allocate and charge reasonably and fairly any common employees or overhead
shared with affiliates; it shall prepare separate tax returns and financial
statements or, if part of a consolidated group, shall be shown as a separate
member of such group; it shall transact business with affiliates on an arm's
length basis pursuant to written agreements; and it shall hold itself out as
being a legal entity, separate and apart from any other person. The single
purpose entity organizational documents shall provide that any dissolution and
winding up or insolvency filing for such entity requires the unanimous consent
of all partners or members, as applicable, and that such documents may not be
amended with respect to the single purpose entity requirements during the term
of the Serviced Mortgage Loan (or the Loan Combination, if applicable).
(j) To the extent that either the Master Servicer or Special
Servicer waives any Default Charges in respect of any Serviced Mortgage Loan,
whether pursuant to Section 3.02(a) or this Section 3.20, the respective amounts
of additional servicing compensation payable to the Master Servicer and the
Special Servicer under Section 3.11 out of such Default Charges shall be reduced
proportionately, based upon the respective amounts that had been payable thereto
out of such Default Charges immediately prior to such waiver.
(k) Notwithstanding anything to the contrary in this Agreement,
neither the Master Servicer nor the Special Servicer, as applicable, shall give
any consent, approval or direction regarding the termination of the related
property manager or the designation of any replacement property manager with
respect to any Mortgaged Property that secures a Significant Mortgage Loan
unless it has received prior written confirmation (the cost of which shall be
paid by the related Mortgagor, if so allowed by the terms of the related loan
documents, and if not so allowed, paid as an Additional Trust Fund Expense) from
the Rating Agencies that such action will not result in an Adverse Rating Event.
(l) Notwithstanding anything in this Section 3.20 to the contrary:
(i) the limitations, conditions and restrictions set forth in this
Section 3.20 shall not apply to any act or event (including, without
limitation, a release of collateral) in respect of any Mortgage Loan that
is required under the Mortgage Loan documents or that either occurs
automatically or results from the exercise of a unilateral option by the
related Mortgagor within the meaning of Treasury Regulations Section
1.1001-3(c)(2)(iii), in any event under the terms of such Mortgage Loan in
effect on the Closing Date (or, in the case of a Qualified Substitute
Mortgage Loan, on the related date of substitution); and
(ii) neither the Master Servicer nor the Special Servicer shall be
required to oppose the confirmation of a plan in any bankruptcy or similar
proceeding involving a Mortgagor if, in its reasonable judgment, such
opposition would not ultimately prevent the confirmation of such plan or
one substantially similar.
(m) Neither the Special Servicer nor the Master Servicer shall have
any liability to the Trust, the Certificateholders, any Non-Trust Noteholder or
any other Person if its analysis and determination that the modification,
waiver, amendment or other action contemplated by this Section 3.20 is
reasonably likely to produce a greater recovery to Certificateholders on a
present value basis than would liquidation should prove to be wrong or
incorrect, so long as the analysis and determination were made on a reasonable
basis by the Special Servicer and/or the Master Servicer, and consistent with
the Servicing Standard.
SECTION 3.21. Transfer of Servicing between Master Servicer and
Special Servicer; Recordkeeping.
(a) Upon determining that a Servicing Transfer Event has occurred
with respect to any Serviced Mortgage Loan, the Master Servicer shall promptly
notify the Certificate Administrator, the Special Servicer and the Controlling
Class Representative (and with respect to a Loan Combination, the related
Non-Trust Noteholder(s)), and if the Master Servicer is not also the Special
Servicer, the Master Servicer shall promptly deliver or cause to be delivered a
copy of the related Servicing File, to the Special Servicer and shall use
reasonable efforts to provide the Special Servicer with all information,
documents (or copies thereof) and records (including records stored
electronically on computer tapes, magnetic discs and the like) relating to the
Serviced Mortgage Loan, either in the Master Servicer's or any of its
directors', officers', employees', affiliates' or agents' possession or control
or otherwise available to the Master Servicer without undue burden or expense,
and reasonably requested by the Special Servicer to enable it to assume its
functions hereunder with respect thereto. The Master Servicer shall use
reasonable efforts to comply with the preceding sentence within five Business
Days of the occurrence of each related Servicing Transfer Event; provided,
however, if the information, documents and records requested by the Special
Servicer are not contained in the Servicing File, the Master Servicer shall have
such period of time as reasonably necessary to make such delivery. After the
occurrence of a Servicing Transfer Event, the Special Servicer shall collect
payments on such Mortgage Loan and make remittances to the Master Servicer in
accordance with Section 3.04.
Upon determining that a Specially Serviced Mortgage Loan has become
a Corrected Mortgage Loan and if the Master Servicer is not also the Special
Servicer, the Special Servicer shall immediately give notice thereof to the
Master Servicer and the Controlling Class Representative (and with respect to a
Loan Combination, the related Non-Trust Noteholder(s)), and shall return the
related Servicing File and all other information, documents and records that
were not part of the Servicing File delivered to the Special Servicer within
five Business Days of such Specially Serviced Mortgage Loan becoming a Corrected
Mortgage Loan, to the Master Servicer (or such other Person as may be directed
by the Master Servicer) and upon giving such notice, and returning such
Servicing File, to the Master Servicer (or such other Person as may be directed
by the Master Servicer), the Special Servicer's obligation to service such
Mortgage Loan, and the Special Servicer's right to receive the Special Servicing
Fee with respect to such Mortgage Loan, shall terminate, and the obligations of
the Master Servicer to service and administer such Mortgage Loan shall resume.
(b) In servicing any Specially Serviced Mortgage Loans, the Special
Servicer shall provide to the Custodian originals of documents included within
the definition of "Mortgage File" for inclusion in the related Mortgage File
(with a copy of each such original to the Master Servicer), and copies of any
additional related Mortgage Loan information, including correspondence with the
related Mortgagor.
(c) No later than 60 days after a Serviced Mortgage Loan becomes a
Specially Serviced Mortgage Loan, the Special Servicer shall deliver to each
Rating Agency, the Certificate Administrator, the Trustee, the Master Servicer
and the Controlling Class Representative, a report (the "Asset Status Report")
with respect to such Loan and the related Mortgaged Property. Such Asset Status
Report shall set forth the following information to the extent reasonably
determinable:
(i) summary of the status of such Specially Serviced Mortgage Loan
and negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer, consistent with the Servicing
Standard, that are applicable to the exercise of remedies as aforesaid and
to the enforcement of any related guaranties or other collateral for the
related Specially Serviced Mortgage Loan and whether outside legal counsel
has been retained;
(iii) the most current rent roll and income or operating statement
available for the related Mortgaged Property;
(iv) the Appraised Value of the Mortgaged Property together with the
assumptions used in the calculation thereof;
(v) summary of the Special Servicer's recommended action with
respect to such Specially Serviced Mortgage Loan; and
(vi) such other information as the Special Servicer deems relevant
in light of the Servicing Standard;
provided, however, that if a Loan Combination is involved, the Asset Status
Report shall be in respect of the entire Loan Combination.
If, subject to Section 6.11 or Section 6.12, as the case may be,
within 10 Business Days of receiving an Asset Status Report which relates to a
recommended action as to which the Controlling Class Representative is entitled
to object under Section 6.11, the Controlling Class Representative does not
disapprove such Asset Status Report in writing, the Special Servicer shall
implement the recommended action as outlined in such Asset Status Report;
provided, however, that the Special Servicer may not take any action that is
contrary to applicable law, the Servicing Standard, or the terms of the
applicable Mortgage Loan documents. If, subject to Section 6.11 or Section 6.12,
as the case may be, the Controlling Class Representative disapproves such Asset
Status Report, the Special Servicer will revise such Asset Status Report and
deliver to the Controlling Class Representative, the Rating Agencies, the
Trustee and the Master Servicer a new Asset Status Report as soon as
practicable, but in no event later than 30 days after such disapproval.
The Special Servicer shall revise such Asset Status Report as
described above in this Section 3.21(c) until the Controlling Class
Representative shall fail to disapprove such revised Asset Status Report in
writing within 10 Business Days of receiving such revised Asset Status Report or
until the Special Servicer makes one of the determinations described below. The
Special Servicer may, from time to time, modify any Asset Status Report it has
previously delivered and implement such modified report, provided such modified
report shall have been prepared, reviewed and not rejected pursuant to the terms
of this section. Notwithstanding the foregoing, the Special Servicer (i) may,
following the occurrence of an extraordinary event with respect to the related
Mortgaged Property, take any action set forth in such Asset Status Report (and
consistent with the terms hereof) before the expiration of a 10-Business Day
period if the Special Servicer has reasonably determined that failure to take
such action would materially and adversely affect the interests of the
Certificateholders (and, in the case of a Loan Combination, the related
Non-Trust Noteholder(s)) and it has made a reasonable effort to contact the
Controlling Class Representative and (ii) in any case, shall determine whether
such affirmative disapproval is not in the best interest of all the
Certificateholders (and, in the case of a Loan Combination, the related
Non-Trust Noteholder(s)) pursuant to the Servicing Standard.
Upon making such determination in clause (ii) of the immediately
preceding paragraph, the Special Servicer shall notify the Certificate
Administrator and the Trustee of such rejection and deliver to the Certificate
Administrator and the Trustee a proposed notice to Certificateholders which
shall include a copy of the Asset Status Report, and the Certificate
Administrator shall send such notice to all Certificateholders. If the majority
of such Certificateholders, as determined by Voting Rights, fail, within 10 days
of the Certificate Administrator's sending such notice, to reject such Asset
Status Report, the Special Servicer shall implement the same. If the Asset
Status Report is rejected by a majority of the Certificateholders (other than
for a reason which violates the Servicing Standard, which shall control), then
the Special Servicer shall revise such Asset Status Report as described above in
this Section 3.21(c) and provide a copy of such revised report to the Master
Servicer. The Certificate Administrator shall be entitled to reimbursement from
the Trust Fund for the reasonable expenses of providing such notices. Except
under the circumstances set forth above where Certificateholders have not
rejected an Asset Status Report that was rejected by the Controlling Class
Representative, in the event the Controlling Class Representative and the
Special Servicer have been unable to agree upon an Asset Status Report with
respect to a Specially Serviced Mortgage Loan within 90 days of the Controlling
Class Representative's receipt of the initial Asset Status Report, the Special
Servicer shall implement the actions directed by the Controlling Class
Representative unless doing so would result in any of the consequences set forth
in the last paragraph of this Section 3.21, in which case the Special Servicer
shall implement the actions described in the most recent Asset Status Report
submitted to the Controlling Class Representative by the Special Servicer.
The Special Servicer shall have the authority to meet with the
Mortgagor for any Specially Serviced Mortgage Loan and take such actions
consistent with the Servicing Standard, the terms hereof and the related Asset
Status Report. The Special Servicer shall not take any action inconsistent with
the related Asset Status Report, unless such action would be required in order
to act in accordance with the Servicing Standard.
Notwithstanding the fact that an Asset Status Report has been
prepared and/or approved, the Controlling Class Representative will remain
entitled to advise and object regarding the actions set forth in Section 6.11(a)
and any related Asset Status Report shall not be a substitute for the exercise
of those rights.
No direction of the Controlling Class Representative or the majority
of the Certificateholders in connection with any Asset Status Report shall (w)
require or cause the Special Servicer to violate the terms of a Specially
Serviced Mortgage Loan, applicable law or any provision of this Agreement,
including the Special Servicer's obligation to act in accordance with the
Servicing Standard and to maintain the REMIC status of each REMIC I and REMIC
II, (x) result in the imposition of a "prohibited transaction" or "prohibited
contribution" tax under the REMIC Provisions or (y) expose the Master Servicer,
the Special Servicer, the Depositor, any of the Mortgage Loan Sellers, the Trust
Fund, the Trustee or the Certificate Administrator or the officers and the
directors of each party to any claim, suit or liability to which they would not
otherwise be subject absent such direction or (z) expand the scope of the Master
Servicer's, the Trustee's, the Certificate Administrator's or the Special
Servicer's responsibilities under this Agreement.
SECTION 3.22. Sub-Servicing Agreements.
(a) Subject to Section 3.22(b) and Section 3.22(f), the Master
Servicer and the Special Servicer may enter into Sub-Servicing Agreements to
provide for the performance by third parties of any or all of their respective
obligations hereunder, provided that, in each case, the Sub-Servicing Agreement:
(i) is consistent with this Agreement in all material respects, requires the
Sub-Servicer to comply with all of the applicable conditions of this Agreement
and includes events of default with respect to the Sub-Servicer substantially
similar to the Events of Default set forth in Section 7.01(a) hereof (other than
Section 7.01(a)(x) and (xi)) to the extent applicable (modified to apply to the
Sub-Servicer instead of the Master Servicer); (ii) provides that if the Master
Servicer or the Special Servicer, as the case may be, shall for any reason no
longer act in such capacity hereunder (including, without limitation, by reason
of an Event of Default), the Trustee or its designee may thereupon (1) assume
all of the rights and, except to the extent such obligations arose prior to the
date of assumption, obligations of the Master Servicer or the Special Servicer,
as the case may be, under such agreement or (2) (except with respect only to the
Sub-Servicing Agreements in effect as of the date of this Agreement (which
agreements are indicated on Exhibit R hereto)) may terminate such sub-servicing
agreement without cause and without payment of any penalty or termination fee
(other than the right of reimbursement and indemnification); (iii) provides that
the Trustee, for the benefit of the Certificateholders and, in the case of a
Sub-Servicing Agreement relating to a Loan Combination, the related Non-Trust
Noteholder(s), shall each be a third party beneficiary under such agreement, but
that (except to the extent the Trustee or its designee assumes the obligations
of the Master Servicer or the Special Servicer, as the case may be, thereunder
as contemplated by the immediately preceding clause (ii)) none of the Trustee,
the Certificate Administrator, the Trust Fund, any successor Master Servicer or
Special Servicer, as the case may be, any Non-Trust Noteholder or any
Certificateholder shall have any duties under such agreement or any liabilities
arising therefrom; (iv) permits any purchaser of a Trust Mortgage Loan pursuant
to this Agreement to terminate such agreement with respect to such purchased
Trust Mortgage Loan at its option and without penalty; (v) does not permit the
Sub-Servicer to enter into or consent to any modification, extension, waiver or
amendment or otherwise take any action on behalf of the Master Servicer or the
Special Servicer contemplated by Section 3.08, Section 3.09 and Section 3.20
hereof without the consent of such Special Servicer or conduct any sale of a
Mortgage Loan or REO Property contemplated by Section 3.18; and (vi) does not
permit the Sub-Servicer any direct rights of indemnification that may be
satisfied out of assets of the Trust Fund. In addition, each Sub-Servicing
Agreement entered into by the Master Servicer (including any with an effective
date on or before the Closing Date) shall provide that such agreement shall,
with respect to any Mortgage Loan serviced thereunder, terminate at the time
such Mortgage Loan becomes a Specially Serviced Mortgage Loan (or,
alternatively, be subject to the Special Servicer's rights to service such
Mortgage Loan for so long as such Mortgage Loan continues to be a Specially
Serviced Mortgage Loan), and each Sub-Servicing Agreement entered into by the
Special Servicer shall relate only to Specially Serviced Mortgage Loans and
shall terminate with respect to any such Mortgage Loan that ceases to be a
Specially Serviced Mortgage Loan. The Master Servicer and the Special Servicer
will each be solely liable for all fees owed by it to any Sub-Servicer with
which it has entered into a Sub-Servicing Agreement, irrespective of whether its
compensation under this Agreement is sufficient to pay those fees. The Master
Servicer and the Special Servicer each shall deliver to the Trustee copies of
all Sub-Servicing Agreements, as well as any amendments thereto and
modifications thereof, entered into by it promptly upon its execution and
delivery of such documents. References in this Agreement to actions taken or to
be taken by the Master Servicer or the Special Servicer include actions taken or
to be taken by a Sub-Servicer on behalf of the Master Servicer or the Special
Servicer, as the case may be; and, in connection therewith to the extent
applicable, all amounts advanced by any Sub-Servicer to satisfy the obligations
of the Master Servicer hereunder to make P&I Advances or Servicing Advances
shall be deemed to have been advanced by the Master Servicer out of its own
funds and, accordingly, such P&I Advances or Servicing Advances shall be
recoverable by such Sub-Servicer in the same manner and out of the same funds as
if such Sub-Servicer were the Master Servicer. For so long as they are
outstanding, Advances shall accrue interest in accordance with Sections 3.03(d)
and 4.03(d), as applicable, such interest to be allocable between the Master
Servicer or the Special Servicer, as the case may be, and such Sub-Servicer as
they may agree. For purposes of this Agreement, the Master Servicer and the
Special Servicer each shall be deemed to have received any payment when a
Sub-Servicer retained by it receives such payment. The Master Servicer and the
Special Servicer each shall notify the other, the Trustee, the Certificate
Administrator, the Depositor and, if a Loan Combination is involved, the related
Non-Trust Noteholder(s), in writing promptly of the appointment by it of any
Sub-Servicer after the date of this Agreement.
(b) Each Sub-Servicer shall be authorized to transact business in
the state or states in which the related Mortgaged Properties it is to service
are situated, if and to the extent required by applicable law.
(c) The Master Servicer and the Special Servicer, for the benefit of
the Trustee and the Certificateholders and, in the case of a Loan Combination,
also for the benefit of the related Non-Trust Noteholder(s), shall (at no
expense to the Trustee, the Certificateholders, the subject Loan Combination,
any related Non-Trust Noteholder or the Trust Fund) monitor the performance and
enforce the obligations of their respective Sub-Servicers under the related
Sub-Servicing Agreements. Such enforcement, including, without limitation, the
legal prosecution of claims, termination of Sub-Servicing Agreements in
accordance with their respective terms and the pursuit of other appropriate
remedies, shall be in such form and carried out to such an extent and at such
time as the Master Servicer or the Special Servicer, as applicable, in its good
faith business judgment, would require were it the owner of the subject Mortgage
Loans. Subject to the terms of the related Sub-Servicing Agreement, the Master
Servicer and the Special Servicer may each have the right to remove a
Sub-Servicer at any time it considers such removal to be in the best interests
of Certificateholders.
(d) In the event of the resignation, removal or other termination of
GMAC Commercial Mortgage Corporation or any successor Master Servicer hereunder
for any reason, the Trustee or other Person succeeding such resigning, removed
or terminated party as Master Servicer, shall elect, with respect to any
Sub-Servicing Agreement in effect as of the date of this Agreement: (i) to
assume the rights and obligations of the Master Servicer under such
Sub-Servicing Agreement and continue the sub-servicing arrangements thereunder
on the same terms (including without limitation the obligation to pay the same
sub-servicing fee); (ii) to enter into a new Sub-Servicing Agreement with such
Sub-Servicer on such terms as the Trustee or other successor Master Servicer and
such Sub-Servicer shall mutually agree (it being understood that such
Sub-Servicer is under no obligation to accept any such new Sub-Servicing
Agreement or to enter into or continue negotiations with the Trustee or other
successor Master Servicer in which case the existing Sub-Servicing Agreement
shall remain in effect); or (iii) to terminate the Sub-Servicing Agreement if
(but only if) an Event of Default (as defined under such Sub-Servicing
Agreement) has occurred and is continuing, in each case without paying any
sub-servicer termination fee.
(e) Notwithstanding any Sub-Servicing Agreement, the Master Servicer
and the Special Servicer shall remain obligated and liable to the Trustee, the
Certificateholders and any Non-Trust Noteholder for the performance of their
respective obligations and duties under this Agreement in accordance with the
provisions hereof to the same extent and under the same terms and conditions as
if each alone were servicing and administering the Mortgage Loans and/or REO
Properties for which it is responsible.
(f) The Special Servicer shall not enter into a Sub-Servicing
Agreement unless Xxxxx'x and S&P have confirmed in writing that the execution of
such agreement will not result in an Adverse Rating Event or such Sub-Servicing
Agreement relates to a Mortgage Loan or Mortgage Loans (along with any Mortgage
Loans previously sub-serviced pursuant to this section) that represent less than
25% of the outstanding principal balance of all Specially Serviced Mortgage
Loans. The Special Servicer shall comply with the terms of each such
Sub-Servicing Agreement to the extent the terms thereof are not inconsistent
with the terms of this Agreement and the Special Servicer's obligations
hereunder.
In addition, the Special Servicer may not enter into any
Sub-Servicing Agreement without the approval of the Controlling Class
Representative, and the rights and obligations of each of the Master Servicer
and the Special Servicer to appoint a Sub-Servicer with respect to a Loan
Combination shall be subject to the related Loan Combination Intercreditor
Agreement.
SECTION 3.23. Representations and Warranties of Master Servicer and
Special Servicer.
(a) The Master Servicer, in such capacity, hereby represents and
warrants to the Trustee, for its own benefit and the benefit of the
Certificateholders, the Certificate Administrator, the Depositor, the Special
Servicer and each Non-Trust Noteholder, 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, except where the failure to so
qualify or comply would not have a material adverse effect on the ability
of the Master Servicer to perform its obligations hereunder.
(ii) The execution and delivery of this Agreement by the Master
Servicer, and the performance and compliance with the terms of this
Agreement by the Master Servicer, will not violate the Master Servicer's
articles of incorporation or by-laws or constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other
material instrument to which it is a party or which is applicable to it or
any of its assets.
(iii) The Master Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Master Servicer, enforceable against the
Master Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, liquidation, receivership, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally and the rights of creditors of banks, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Master Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Master Servicer's good faith reasonable
judgment, is likely to affect materially and adversely either the ability
of the Master Servicer to perform its obligations under this Agreement or
the financial condition of the Master Servicer.
(vi) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened, against the Master Servicer that would
prohibit the Master Servicer from entering into this Agreement or, in the
Master Servicer's good faith reasonable judgment, is likely to materially
and adversely affect either the ability of the Master Servicer to perform
its obligations under this Agreement or the financial condition of the
Master Servicer, calculated on a consolidated basis.
(vii) Each officer, director, or employee of the Master Servicer
with responsibilities concerning the servicing and administration of
Mortgage Loans is covered by errors and omissions insurance and a fidelity
bond in the amounts and with the coverage as, and to the extent, required
by Section 3.07(c).
(viii) Any consent, approval, authorization or order of any court or
governmental agency or body required for the execution, delivery and
performance by the Master Servicer of or compliance by the Master Servicer
with this Agreement or the consummation of the transactions contemplated
by this Agreement has been obtained and is effective, or if any such
consent, approval, authorization or order has not been or cannot be
obtained prior to the actual performance by the Master Servicer of its
obligations under this Agreement, the lack of such item would not have a
materially adverse effect on the ability of the Master Servicer to perform
its obligations under this Agreement.
(b) The Special Servicer, in such capacity, hereby represents and
warrants to the Trustee, for its own benefit and the benefit of the
Certificateholders, the Certificate Administrator, the Depositor, the Master
Servicer and each Non-Trust Noteholder, as of the Closing Date, that:
(i) The Special Servicer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida and
the Special Servicer is in compliance with the laws of each State in which
any Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Special
Servicer, and the performance and compliance with the terms of this
Agreement by the Special Servicer, will not violate the Special Servicer's
operating agreement or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other material
instrument by which it is bound.
(iii) The Special Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Special Servicer, enforceable against the
Special Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Special Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Special Servicer's good faith
reasonable judgment, is likely to affect materially and adversely either
the ability of the Special Servicer to perform its obligations under this
Agreement or the financial condition of the Special Servicer.
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened, against the Special Servicer that would
prohibit the Special Servicer from entering into this Agreement or, in the
Special Servicer's good faith reasonable judgment, is likely to materially
and adversely affect either the ability of the Special Servicer to perform
its obligations under this Agreement or the financial condition of the
Special Servicer.
(vii) Each officer, director and employee of the Special Servicer
and each consultant or advisor of the Special Servicer with
responsibilities concerning the servicing and administration of Mortgage
Loans is covered by errors and omissions insurance in the amounts and with
the coverage required by Section 3.07(c).
(viii) Any consent, approval, authorization or order of any court or
governmental agency or body required for the execution, delivery and
performance by the Special Servicer of or compliance by the Special
Servicer with this Agreement or the consummation of the transactions
contemplated by this Agreement has been obtained and is effective.
(ix) The Special Servicer possesses all insurance required pursuant
to Section 3.07(c) of this Agreement.
(c) The representations and warranties of the Master Servicer and
the Special Servicer, set forth in Section 3.23(a) (with respect to the Master
Servicer) and Section 3.23(b) (with respect to the Special Servicer),
respectively, shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust Fund remains in existence. Upon discovery by any party
hereto of any breach of any of the foregoing representations and warranties, the
party discovering such breach shall give prompt written notice to the other
parties hereto.
SECTION 3.24. Sub-Servicing Agreement Representation and Warranty.
The Master Servicer, in such capacity, hereby represents and
warrants to the Trustee, for its own benefit and the benefit of the
Certificateholders, and to the Certificate Administrator, the Depositor and the
Special Servicer, as of the Closing Date, that each Sub-Servicing Agreement
satisfies the requirements for such Sub-Servicing Agreements set forth in
Section 3.22(a) and the second paragraph of Section 3.22(d) in all material
respects.
SECTION 3.25. Designation of Controlling Class Representative.
(a) The Holders (or, in the case of Book-Entry Certificates, the
Certificate Owners) of Certificates representing more than 50% of the Class
Principal Balance of the Controlling Class shall be entitled in accordance with
this Section 3.25 to select a representative (the "Controlling Class
Representative") having the rights and powers specified in this Agreement
(including those specified in Section 6.11) or to replace an existing
Controlling Class Representative.
Upon (i) the receipt by the Certificate Administrator of written
requests for the selection of a Controlling Class Representative from the
Holders (or, in the case of Book-Entry Certificates, the Certificate Owners) of
Certificates representing more than 50% of the Class Principal Balance of the
Controlling Class, (ii) the resignation or removal of the Person acting as
Controlling Class Representative or (iii) a determination by the Certificate
Administrator that the Controlling Class has changed, the Certificate
Administrator shall promptly notify the Depositor and the Holders (and, in the
case of Book-Entry Certificates, to the extent actually known to a Responsible
Officer of the Certificate Administrator or identified thereto by the Depository
or the Depository Participants, the Certificate Owners) of the Controlling Class
that they may select a Controlling Class Representative. Such notice shall set
forth the process for selecting a Controlling Class Representative, which shall
be the designation of the Controlling Class Representative by the Holders (or
Certificate Owners) of Certificates representing more than 50% of the Class
Principal Balance of the Controlling Class by a writing delivered to the
Certificate Administrator. No appointment of any Person as a Controlling Class
Representative shall be effective until such Person provides the Certificate
Administrator, the Master Servicer and the Special Servicer with written
confirmation of its acceptance of such appointment, an address and facsimile
number for the delivery of notices and other correspondence and a list of
officers or employees of such Person with whom the parties to this Agreement may
deal (including their names, titles, work addresses and facsimile numbers);
provided that the initial Controlling Class Representative shall be LNR
Securities Holdings, LLC and no further notice shall be required for such
appointment to be effective.
(b) Within 10 Business Days (or as soon thereafter as practicable if
the Controlling Class consists of Book-Entry Certificates) of receiving a
request therefor from the Master Servicer or Special Servicer, the Certificate
Administrator shall deliver to the requesting party the identity of the
Controlling Class Representative and/or and a list of each Holder (or, in the
case of Book-Entry Certificates, to the extent actually known to a Responsible
Officer of the Trustee or identified thereto by the Depository or the Depository
Participants, each Certificate Owner) of the Controlling Class, including, in
each case, names and addresses. With respect to such information, the
Certificate Administrator shall be entitled to conclusively rely on information
provided to it by the Depository, and the Master Servicer and the Special
Servicer shall be entitled to conclusively rely on such information provided by
the Certificate Administrator with respect to any obligation or right hereunder
that the Master Servicer and the Special Servicer may have to deliver
information or otherwise communicate with the Controlling Class Representative
or any of the Holders (or, if applicable, Certificate Owners) of the Controlling
Class. In addition to the foregoing, within two (2) Business Days of the
selection, resignation or removal of a Controlling Class Representative, the
Certificate Administrator shall notify the other parties to this Agreement of
such event. The expenses incurred by the Certificate Administrator in connection
with obtaining information from the Depository or Depository Participants with
respect to any Book-Entry Certificate shall be expenses of the Trust Fund
payable out of the Collection Account pursuant to Section 3.05(a).
(c) The Controlling Class Representative may at any time resign as
such by giving written notice to the Certificate Administrator and to each
Holder (or, in the case of Book-Entry Certificates, Certificate Owner) of the
Controlling Class. The Holders (or, in the case of Book-Entry Certificates, the
Certificate Owners) of Certificates representing more than 50% of the Class
Principal Balance of the Controlling Class shall be entitled to remove any
existing Controlling Class Representative by giving written notice to the
Certificate Administrator and to such existing Controlling Class Representative.
(d) Once a Controlling Class Representative has been selected
pursuant to this Section 3.25 each of the parties to this Agreement and each
Certificateholder (or Certificate Owner, if applicable) shall be entitled to
rely on such selection unless a majority of the Holders (or, in the case of
Book-Entry Certificates, the Certificate Owners) of the Controlling Class, by
aggregate Certificate Principal Balance, or such Controlling Class
Representative, as applicable, shall have notified the Certificate Administrator
and each other Holder (or, in the case of Book-Entry Certificates, Certificate
Owner) of the Controlling Class, in writing, of the resignation or removal of
such Controlling Class Representative.
(e) Any and all expenses of the Controlling Class Representative
shall be borne by the Holders (or, if applicable, the Certificate Owners) of
Certificates of the Controlling Class, pro rata among such Holders (or
Certificate Owners) according to their respective Percentage Interests in such
Class, and not by the Trust. Notwithstanding the foregoing, if a claim is made
against the Controlling Class Representative by a Mortgagor with respect to this
Agreement or any particular Mortgage Loan, the Controlling Class Representative
shall immediately notify the Certificate Administrator, the Trustee, the Master
Servicer and the Special Servicer, whereupon (if the Special Servicer or the
Trust Fund are also named parties to the same action and, in the sole judgment
of the Special Servicer, (i) the Controlling Class Representative had acted in
good faith, without negligence or willful misfeasance with regard to the
particular matter, and (ii) there is no potential for the Special Servicer or
the Trust Fund to be an adverse party in such action as regards the Controlling
Class Representative or related Controlling Class Representative, as applicable)
the Special Servicer on behalf of the Trust Fund shall, subject to Section 6.03,
assume the defense of any such claim against the Controlling Class
Representative. This provision shall survive the termination of this Agreement
and the termination or resignation of the Controlling Class Representative.
SECTION 3.26. Application of Default Charges.
(a) Any and all Default Charges that are actually received with
respect to any Mortgage Loan or REO Loan (but, in the case of the Glendale
Galleria Trust Mortgage Loan or any successor Trust REO Loan with respect
thereto, only to the extent of the Default Charges, if any, remitted to the
Trust in accordance with the MLMT Series 2005-CKI1 Pooling and Servicing
Agreement and/or the Glendale Galleria Intercreditor Agreement) shall be applied
for the following purposes and in the following order, in each case to the
extent of the remaining portion of such Default Charges:
first, to pay to the Trustee, the Master Servicer or the
Special Servicer, in that order, any interest due and owing to such
party on outstanding Advances made thereby with respect to such
Mortgage Loan or REO Loan, as the case may be;
second, to pay any outstanding expense incurred by the Special
Servicer in connection with inspecting the related Mortgaged
Property or REO Property, as applicable, pursuant to Section 3.12;
third, to pay the appropriate party for any other outstanding
expense incurred thereby with respect to such Mortgage Loan or REO
Loan, as the case may be, which expense, if not paid out of Default
Charges collected on such Mortgage Loan or REO Loan, as the case may
be, will likely become an Additional Trust Fund Expense; and
fourth, to pay (A) if such Mortgage Loan is a Non-Trust Loan,
any remaining portion of such Default Charges that is comprised of
late payment charges and (B) if such Mortgage Loan is a Trust
Mortgage Loan or such REO Loan is a Trust REO Loan, as the case may
be, any remaining portion of such Default Charges, in each case as
additional master servicing compensation to the Master Servicer, if
such Default Charges (or portion thereof comprised of late payment
charges) were collected when the loan was a non-Specially Serviced
Mortgage Loan, and otherwise to pay (X) if such Mortgage Loan is a
Non-Trust Loan, any remaining portion of such Default Charges that
is comprised of late payment charges and (Y) if such Mortgage Loan
is a Trust Mortgage Loan or such REO Loan is a Trust REO Loan, as
the case may be, any remaining portion of such Default Charges, in
each case as additional special servicing compensation to the
Special Servicer.
(b) The portion of any Default Charges with respect to a Non-Trust
Loan that is not applied as provided for above in this Section 3.26, shall be
applied pursuant to the related Loan Combination Intercreditor Agreement.
SECTION 3.27. Controlling Class Representative Contact with
Servicer.
No less often than on a monthly basis, each of the Master Servicer
and the Special Servicer shall, without charge, make a knowledgeable Servicing
Officer via telephone available to verbally answer questions from the
Controlling Class Representative regarding the performance and servicing of the
Mortgage Loans and/or REO Properties for which the Master Servicer or the
Special Servicer, as the case may be, is responsible. The Controlling Class
Representative agrees to identify for the Master Servicer and the Special
Servicer in advance (but at least two (2) Business Days prior to the related
conference) the Mortgage Loans it intends to discuss. Any such telephone contact
shall be conditioned on the Controlling Class Representative's delivery to the
Master Servicer of an agreement substantially in the form of Exhibit I-1 (or
such other form as may be reasonably acceptable to the Master Servicer or the
Special Servicer, as applicable).
SECTION 3.28. Certain Matters Regarding the Loan Combinations.
(a) Glendale Galleria Loan Combination.
(i) The parties hereto, the Plurality Subordinate Certificateholder,
by its acceptance of its rights and obligations set forth herein, and each
Certificateholder, by its acceptance of a Certificate, hereby acknowledge
the rights of the Glendale Galleria Subordinate Noteholders, upon the
occurrence of certain specified events under the Glendale Galleria
Intercreditor Agreement, to purchase the Glendale Galleria Trust Mortgage
Loan from the Trust, subject to the terms, conditions and limitations set
forth in, and at the price specified in, the related Loan Combination
Intercreditor Agreement, and the parties hereto agree to take such actions
contemplated by the related Loan Combination Intercreditor Agreement as
may be expressly contemplated thereby, or otherwise reasonably necessary,
to allow a Glendale Galleria Subordinate Noteholder to purchase the
related Glendale Galleria Trust Mortgage Loan from the Trust. Such
purchase right shall be superior to the corresponding Purchase Option set
forth in Section 3.18(c)).
(ii) In connection with any purchase of the Glendale Galleria Trust
Mortgage Loan by a Glendale Galleria Non-Trust Noteholder pursuant to the
Glendale Galleria Intercreditor Agreement, the Master Servicer or the
Special Servicer shall (i) if it receives the "Defaulted Mortgage Loan
Purchase Price" (as defined in the Glendale Galleria Intercreditor
Agreement) and/or any other amounts payable in connection with the
purchase, deposit same, or remit same to the Master Servicer for deposit,
as applicable, into the Collection Account, and so notify the Trustee; and
(ii) subject to Section 3.01(g), deliver the related Servicing File to the
Person effecting the purchase or its designee. In addition, upon its
receipt of a Request for Release from the Master Servicer, the Trustee
shall: (i) deliver the Mortgage File to the Person effecting the purchase
or its designee; and (ii) execute and deliver such endorsements,
assignments and instruments of transfer as shall be provided to it and are
reasonably necessary to vest ownership of the Glendale Galleria Trust
Mortgage Loan in the appropriate transferee, without recourse,
representations or warranties.
(iii) The parties hereto acknowledge that each Non-Trust Noteholder
shall not (1) owe any fiduciary duty to the Trustee, the Certificate
Administrator, the Master Servicer, the Special Servicer or any
Certificateholder or (2) have any liability to the Trustee or the
Certificateholders for any action taken, or for refraining from the taking
of any action pursuant to the related Loan Combination Intercreditor
Agreement or the giving of any consent or for errors in judgment. Each
Certificateholder, by its acceptance of a Certificate, shall be deemed to
have confirmed its understanding that each Non-Trust Noteholder (i) may
take or refrain from taking actions that favor its interests or the
interests of its affiliates over the Certificateholders, (ii) may have
special relationships and interests that conflict with the interest of the
Certificateholders and shall be deemed to have agreed to take no action
against a Non-Trust Noteholder or any of its officers, directors,
employees, principals or agents as a result of such special relationships
or conflicts, and (iii) shall not be liable by reason of its having acted
or refrained from acting solely in its interest or in the interest of its
affiliates.
(iv) The Certificate Administrator (on behalf of the Trustee) and
the Master Servicer shall comply with the last paragraph of Section 3.6 of
the Glendale Galleria Note A Intercreditor Agreement.
(b) A/B Loan Combination.
(i) With respect to each A/B Loan Combination, the parties hereto,
the Plurality Subordinate Certificateholder, by its acceptance of its
rights and obligations set forth herein, and each Certificateholder, by
its acceptance of a Certificate, hereby acknowledge the rights of the
related B-Noteholder, upon the occurrence of certain specified events
under the related Loan Combination Intercreditor Agreement, to purchase
the related Trust Mortgage Loan from the Trust, subject to the terms,
conditions and limitations set forth in, and at the price specified in,
the related Loan Combination Intercreditor Agreement, and the parties
hereto agree to take such actions contemplated by the related Loan
Combination Intercreditor Agreement as may be expressly contemplated
thereby, or otherwise reasonably necessary, to allow such B-Noteholder to
purchase the related Trust Mortgage Loan from the Trust. Such purchase
right shall be superior to the corresponding Purchase Option set forth in
Section 3.18(c)).
(ii) With respect to each A/B Loan Combination, in connection with
any purchase of the related Trust Mortgage Loan by the related
B-Noteholder pursuant to the related Loan Combination Intercreditor
Agreement, the Master Servicer or the Special Servicer shall (i) if it
receives the "Defaulted Mortgage Loan Purchase Price" (as defined in the
related Loan Combination Intercreditor Agreement) and/or any other amounts
payable in connection with the purchase, deposit same, or remit same to
the Master Servicer for deposit, as applicable, into the related Loan
Combination Custodial Account, and so notify the Trustee; and (ii) subject
to Section 3.01(g), deliver the related Servicing File to the Person
effecting the purchase or its designee. In addition, upon its receipt of a
Request for Release from the Master Servicer, the Trustee shall: (i)
deliver the Mortgage File to the Person effecting the purchase or its
designee; and (ii) execute and deliver such endorsements, assignments and
instruments of transfer as shall be provided to it and are reasonably
necessary to vest ownership of the related Trust Mortgage Loan in the
appropriate transferee, without recourse, representations or warranties.
(iii) The parties hereto acknowledge that each B-Noteholder shall
not (1) owe any fiduciary duty to the Trustee, the Certificate
Administrator, the Master Servicer, the Special Servicer or any
Certificateholder or (2) have any liability to the Trustee or the
Certificateholders for any action taken, or for refraining from the taking
of any action pursuant to the related Loan Combination Intercreditor
Agreement or the giving of any consent or for errors in judgment. Each
Certificateholder, by its acceptance of a Certificate, shall be deemed to
have confirmed its understanding that each B-Noteholder (i) may take or
refrain from taking actions that favor its interests or the interests of
its affiliates over the Certificateholders, (ii) may have special
relationships and interests that conflict with the interest of the
Certificateholders and shall be deemed to have agreed to take no action
against a Non-Trust Noteholder or any of its officers, directors,
employees, principals or agents as a result of such special relationships
or conflicts, and (iii) shall not be liable by reason of its having acted
or refrained from acting solely in its interest or in the interest of its
affiliates.
SECTION 3.29. Litigation Control.
(a) The Special Servicer shall, (1) direct, manage, prosecute and/or
defend any action brought by a Mortgagor against the Trust and/or the Special
Servicer 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 Borrower, under the Mortgage Loan Documents
("Trust-Related Litigation").
(b) To the extent the Master Servicer is named in Trust-Related
Litigation, and the Trust or Special Servicer is not named, 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 service of such Trust Related Litigation;
(2) provide monthly status reports to the Special Servicer, regarding such
Trust-Related Litigation; (3) seek to have the Trust replace the Master Servicer
as the appropriate party to the lawsuit; and (4) so long as the Master Servicer
remains a party to the lawsuit, consult with and act at the direction of the
Special Servicer with respect to decisions and resolutions related to the
interests of the Trust in such Trust-Related Litigation, including but not
limited to the selection of counsel, provided, however, if there are claims
against the Master Servicer and the Master Servicer has not determined that
separate counsel is required for such claims, such counsel shall be reasonably
acceptable to the Master Servicer.
(c) Notwithstanding the right of the Special Servicer to represent
the interests of the Trust in Trust-Related Litigation, and subject to the
rights of the Special Servicer to direct the Master Servicer's actions in
Section 3.29(d) below, the Master shall retain the right to make determinations
relating to claims against the Master Servicer, including but not limited to the
right to engage separate counsel if necessary. 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.
(d) Notwithstanding the Master Servicer's right to make
determinations relating to claims against the Master Servicer, the Special
Servicer shall (1) 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 (whether or not the Trust or the Special Servicer is named
in any such claims or Trust-Related Litigation) and (2) otherwise direct the
actions of the Master Servicer relating to claims against the Master Servicer
(whether or not the Trust or the Special Servicer is named in any such claims or
Trust-Related Litigation), provided in either case that such settlement or other
direction 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.
(e) In the event both the Master Servicer and the Special Servicer
or Trust are named in litigation, the Master Servicer and the Special Servicer
shall cooperate with each other to afford the Master Servicer and the Special
Servicer the rights afforded to such party in this Section 3.29.
(f) This Section 3.29 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.
(g) Notwithstanding the foregoing, (i) in the event that any action,
suit, litigation or proceeding names the Trustee in its individual capacity, or
in the event that any judgment is rendered against the Trustee in its individual
capacity, the Trustee, upon prior written notice to the Master Servicer or the
Special Servicer, as applicable, may retain counsel and appear in any such
proceeding on its own behalf in order to protect and represent its interests
(but not to otherwise direct, manage or prosecute such litigation or claim),
(ii) in the event of any action, suit, litigation or proceeding, other than an
action, suit, litigation or proceeding relating to the enforcement of the
obligations of a Mortgagor under the related Mortgage Loan documents or
otherwise relating to a Mortgage Loan or Mortgaged Property, neither the Master
Servicer nor the Special Servicer shall, without the prior written consent of
the Trustee, (A) initiate any action, suit, litigation or proceeding in the name
of the Trustee, whether in such capacity or individually, (B) engage counsel to
represent the Trustee, or (C) prepare, execute or deliver any government
filings, forms, permits, registrations or other documents or take any other
similar action with the intent to cause, and that actually causes, the Trustee
to be registered to do business in any state, and (iii) in the event that any
court finds that the Trustee is a necessary party in respect of any action,
suit, litigation or proceeding relating to or arising from this Agreement or any
Mortgage Loan, the Trustee shall have the right to retain counsel and appear in
any such proceeding on its own behalf in order to protect and represent its
interest (but not to otherwise direct, manage or prosecute such litigation or
claim).
(h) Notwithstanding the foregoing, (i) in the event that any action,
suit, litigation or proceeding names the Certificate Administrator in its
individual capacity, or in the event that any judgment is rendered against the
Certificate Administrator in its individual capacity, the Certificate
Administrator, upon prior written notice to the Master Servicer or the Special
Servicer, as applicable, may retain counsel and appear in any such proceeding on
its own behalf in order to protect and represent its interests; provided that
the Master Servicer or the Special Servicer, as applicable, shall retain the
right to manage and direct any such action, suit, litigation or proceeding; (ii)
in the event of any action, suit, litigation or proceeding, other than an
action, suit, litigation or proceeding relating to the enforcement of the
obligations of a Mortgagor under the related Mortgage Loan documents, neither
the Master Servicer nor the Special Servicer shall, without the prior written
consent of the Certificate Administrator, (A) initiate any action, suit,
litigation or proceeding in the name of the Certificate Administrator, whether
in such capacity or individually, (B) engage counsel to represent the
Certificate Administrator, or (C) prepare, execute or deliver any government
filings, forms, permits, registrations or other documents or take any other
similar action with the intent to cause, and that actually causes, LaSalle to be
registered to do business in any state (provided that no party hereto shall be
responsible for any delay due to the failure of the Certificate Administrator to
grant such consent); and (iii) in the event that any court finds that the
Certificate Administrator is a necessary party in respect of any action, suit,
litigation or proceeding relating to or arising from this Pooling and Servicing
Agreement or any Mortgage Loan, the Certificate Administrator shall have the
right to retain counsel and appear in any such proceeding on its own behalf in
order to protect and represent its interest, whether as Certificate
Administrator or individually; provided that the Master Servicer or the Special
Servicer, as applicable, shall retain the right to manage and direct any such
action, suit, litigation or proceeding.
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) On each Distribution Date, the Certificate Administrator shall
(except as otherwise provided in Section 9.01), based on information provided by
the Master Servicer and the Special Servicer, apply amounts on deposit in the
Distribution Account, after payment of amounts payable from the Distribution
Account in accordance with Section 3.05(b)(ii) through (ix) and deemed
distributions from REMIC I pursuant to Section 4.01(h), for the following
purposes and in the following order of priority, in each case to the extent of
the remaining portion of the Loan Group 1 Available Distribution Amount and/or
the Loan Group 2 Available Distribution Amount, as applicable:
(i) to make distributions of interest to the Holders of the Class
A-1, Class A-2, Class A-3, Class A-SB and Class A-4 Certificates and to
the Floating Rate Account with respect to the Class A-3FL REMIC II Regular
Interest and the Class A-4FC REMIC II Regular Interest, from the Loan
Group 1 Available Distribution Amount, in an amount equal to, and pro rata
as among those Classes of Senior Certificates, the Class A-3FL REMIC II
Regular Interest and the Class A-4FC REMIC II Regular Interest in
accordance with, all Distributable Certificate Interest in respect of each
such Class of Senior Certificates, the Class A-3FL REMIC II Regular
Interest and the Class A-4FC REMIC II Regular Interest for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates; and concurrently, to make distributions of interest to
the Holders of the Class A-1A Certificates, from the Loan Group 2
Available Distribution Amount in an amount equal to all Distributable
Certificate Interest in respect of the Class A-1A Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates; and also concurrently, to make distributions of
interest to the Holders of the Class X Certificates, from the Loan Group 1
Available Distribution Amount and/or the Loan Group 2 Available
Distribution Amount, in an amount equal to all Distributable Certificate
Interest in respect of the Class of Class X Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates; provided, however, that if the Loan Group 1 Available
Distribution Amount and/or the Loan Group 2 Available Distribution Amount
is insufficient to pay in full the Distributable Certificate Interest
payable as described above in respect of any Class of Senior Certificates,
the Class A-3FL REMIC II Regular Interest and the Class A-4FC REMIC II
Regular Interest, as the case may be, on such Distribution Date, then the
entire Available Distribution Amount shall be applied to make
distributions of interest to the Holders of the respective Classes of the
Senior Certificates (exclusive of the Class A-3FL and the Class A-4FC
Certificates), the Class A-3FL REMIC II Regular Interest and the Class
A-4FC REMIC II Regular Interest, up to an amount equal to, and pro rata as
among such Classes of Senior Certificates, the Class A-3FL REMIC II
Regular Interest and the Class A-4FC REMIC II Regular Interest in
accordance with, the Distributable Certificate Interest in respect of each
such Class of Senior Certificates, the Class A-3FL REMIC II Regular
Interest and the Class A-4FC REMIC II Regular Interest for such
Distribution Date, and to the extent not previously paid, for all prior
Distribution Dates, if any;
(ii) to make distributions of principal, first, to the Holders of
the Class A-SB Certificates, until the related Class Principal Balance is
reduced to the Class A-SB Planned Principal Balance for such Distribution
Date, second, to the Holders of the Class A-1 Certificates until the
related Class Principal Balance is reduced to zero, third, to the Holders
of the Class A-2 Certificates until the related Class Principal Balance is
reduced to zero, fourth, to the Holders of the Class A-3 Certificates and
the Floating Rate Account with respect to the Class A-3FL REMIC II Regular
Interest on a pro rata basis in accordance with the respective Class
Principal Balances thereof outstanding immediately prior to such
Distribution Date, until the related Class Principal Balances are reduced
to zero, fifth, to the Holders of the Class A-SB Certificates (after
taking into account any distributions of principal made with respect to
the Class A-SB Certificates on such Distribution Date pursuant to
subclause first of this clause (ii)), until the related Class Principal
Balance is reduced to zero, and sixth, to the Holders of the Class A-4
Certificates and the Floating Rate Account with respect to the Class A-4FC
REMIC II Regular Interest on a pro rata basis in accordance with the
respective Class Principal Balances thereof outstanding immediately prior
to such Distribution Date, in that order, until the related Class
Principal Balances are reduced to zero, in an aggregate amount for
subclauses first through sixth above (not to exceed the aggregate of the
Class Principal Balances of those Classes of Senior Certificates, the
Class A-3FL REMIC II Regular Interest and the Class A-4FC REMIC II Regular
Interest outstanding immediately prior to such Distribution Date) equal to
the Loan Group 1 Principal Distribution Amount for such Distribution Date;
and concurrently, to make distributions of principal to the Holders of the
Class A-1A Certificates, in an amount (not to exceed the Class Principal
Balance of the Class A-1A Certificates outstanding immediately prior to
such Distribution Date) equal to the Loan Group 2 Principal Distribution
Amount for such Distribution Date; provided that, if the portion of the
Available Distribution Amount for such Distribution Date remaining after
the distributions of interest made pursuant to the immediately preceding
clause (i) is less than the Principal Distribution Amount for such
Distribution Date, then the Holders of the Class A-1, Class A-2, Class
A-3, Class A-SB and Class A-4 Certificates, Grantor Trust A-3FL with
respect to the Class A-3FL REMIC II Regular Interest and Grantor Trust
A-4FC with respect to the Class A-4FC REMIC II Regular Interest shall have
a prior right, relative to the Holders of the Class A-1A Certificates, to
receive their distributions of principal pursuant to this clause (ii) out
of the remaining portion of the Loan Group 1 Available Distribution Amount
for such Distribution Date and the Holders of the Class A-1A Certificates
shall have a prior right, relative to the Holders of the Class A-1, Class
A-2, Class A-3, Class A-SB and Class A-4 Certificates, Grantor Trust A-3FL
with respect to the Class A-3FL REMIC II Regular Interest and Grantor
Trust A-4FC with respect to the Class A-4FC REMIC II Regular Interest, to
receive their distributions of principal pursuant to this clause (ii) out
of the remaining portion of the Loan Group 2 Available Distribution Amount
for such Distribution Date; and provided, further, that, notwithstanding
the foregoing, if the aggregate of the Class Principal Balances of the
Class AM, Class AJ, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class P and Class Q
Certificates has previously been reduced to zero, then distributions of
principal will be made to the Holders of the Class A-1, Class X-0, Xxxxx
X-0, Class A-SB, Class A-4 and Class A-1A Certificates and to the Floating
Rate Account with respect to the Class A-3FL REMIC II Regular Interest and
the Class A-4FC REMIC II Regular Interest pursuant to this clause (ii) up
to an amount equal to, and pro rata as among such Classes of Senior
Certificates, the Class A-3FL REMIC II Regular Interest and the Class
A-4FC REMIC II Regular Interest in accordance with, the respective Class
Principal Balance thereof outstanding immediately prior to such
Distribution Date (and without regard to Loan Groups or the Principal
Distribution Amount for such Distribution Date);
(iii) after the Class Principal Balance of the Class A-1A
Certificates has been reduced to zero, to make distributions of principal,
first, to the Holders of the Class A-SB Certificates, until the related
Class Principal Balance (after taking into account any distributions of
principal made with respect to the Class A-SB Certificates on such
Distribution Date pursuant to the immediately preceding clause (ii)) is
reduced to the Class A-SB Planned Principal Balance for such Distribution
Date, second, to the Holders of the Class A-1 Certificates, until the
related Class Principal Balance is reduced to zero, third, to the Holders
of the Class A-2 Certificates, until the related Class Principal Balance
is reduced to zero, fourth, to the Holders of the Class A-3 Certificates
and Grantor Trust A-3FL with respect to the Class A-3FL REMIC II Regular
Interest on a pro rata basis in accordance with the respective Class
Principal Balances thereof then outstanding, until the related Class
Principal Balances are reduced to zero, fifth, to the Holders of the Class
A-SB Certificates (after taking into account any distributions of
principal made with respect to the Class A-SB Certificates on such
Distribution Date pursuant to subclause first of this clause (iii)),
sixth, to the Holders of the Class A-4 Certificates and Grantor Trust
A-4FC with respect to the Class A-4FC REMIC II Regular Interest on a pro
rata basis in accordance with the respective Class Principal Balances
thereof then outstanding, until the related Class Principal Balance is
reduced to zero, in that order, until the related Class Principal Balance
(after taking into account any distributions of principal with respect to
those Classes of Senior Certificates, the Class A-3FL REMIC II Regular
Interest and the Class A-4FC REMIC II Regular Interest on such
Distribution Date pursuant to the immediately preceding clause (ii)) is
reduced to zero, in an aggregate amount (not to exceed the aggregate of
the Class Principal Balances of those Classes of Senior Certificates, the
Class A-3FL REMIC II Regular Interest and the Class A-4FC REMIC II Regular
Interest outstanding immediately prior to such Distribution Date, reduced
by any distributions of principal made with respect to those Classes of
Senior Certificates, the Class A-3FL REMIC II Regular Interest or the
Class A-4FC REMIC II Regular Interest on such Distribution Date pursuant
to the immediately preceding clause (ii)) equal to the excess, if any, of
(A) the Loan Group 2 Principal Distribution Amount for such Distribution
Date, over (B) the distributions of principal made with respect to the
Class A-1A Certificates on such Distribution Date pursuant to the
immediately preceding clause (ii).
(iv) after the aggregate of the Class Principal Balances of the
Class A-1, Class A-2, Class A-3, Class A-SB and Class A-4 Certificates,
the Class A-3FL REMIC II Regular Interest and the Class A-4FC REMIC II
Regular Interest has been reduced to zero, to make distributions of
principal to the Holders of the Class A-1A Certificates, in an amount (not
to exceed the Class Principal Balance of the Class A-1A Certificates
outstanding immediately prior to such Distribution Date, reduced by any
distributions of principal made with respect to the Class A-1A
Certificates on such Distribution Date pursuant to clause (ii) above)
equal to the excess, if any, of (A) the Loan Group 1 Principal
Distribution Amount for such Distribution Date, over (B) the aggregate
distributions of principal made with respect to the Class A-1, Class A-2,
Class A-3, Class A-SB and/or Class A-4 Certificates, the Class A-3FL REMIC
II Regular Interest and/or the Class A-4FC REMIC II Regular Interest on
such Distribution Date pursuant to clause (ii) above;
(v) to make distributions to the Holders of the Class A-1, Class
X-0, Xxxxx X-0, Class A-SB, Class A-4 and Class A-1A Certificates and to
the Floating Rate Account with respect to the Class A-3FL REMIC II Regular
Interest and the Class A-4FC REMIC II Regular Interest, in an amount equal
to, pro rata in accordance with, and in reimbursement of, all Realized
Losses and Additional Trust Fund Expenses, if any, previously allocated to
each such Class of Senior Certificates, the Class A-3FL REMIC II Regular
Interest and the Class A-4FC REMIC II Regular Interest, respectively, and
not previously reimbursed;
(vi) to make distributions of interest to the Holders of the Class
AM Certificates in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(vii) after the Class Principal Balances of the Class A-1, Class
X-0, Xxxxx X-0, Class A-SB, Class A-4 and Class A-1A Certificates, the
Class A-3FL REMIC II Regular Interest and the Class A-4FC REMIC II Regular
Interest have been reduced to zero, to make distributions of principal to
the Holders of the Class AM Certificates, in an amount (not to exceed the
Class Principal Balance of the Class AM Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Sequential Pay Certificates and/or to the Floating Rate Account with
respect to the Class A-3FL REMIC II Regular Interest and/or the Class
A-4FC REMIC II Regular Interest pursuant to any prior clause of this
Section 4.01(a));
(viii) to make distributions to the Holders of the Class AM
Certificates, in an amount equal to, and in reimbursement of, all Realized
Losses and Additional Trust Fund Expenses, if any, previously allocated to
the Class AM Certificates and not previously reimbursed;
(ix) to make distributions of interest to the Holders of the Class
AJ Certificates in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(x) after the Class Principal Balance of the Class AM Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class AJ Certificates, in an amount (not to exceed the
Class Principal Balance of the Class AJ Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Sequential Pay Certificates and/or to the Floating Rate Account with
respect to the Class A-3FL REMIC II Regular Interest and/or the Class
A-4FC REMIC II Regular Interest pursuant to any prior clause of this
Section 4.01(a));
(xi) to make distributions to the Holders of the Class AJ
Certificates, in an amount equal to, and in reimbursement of, all Realized
Losses and Additional Trust Fund Expenses, if any, previously allocated to
the Class AJ Certificates and not previously reimbursed;
(xii) to make distributions of interest to the Holders of the Class
B Certificates in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(xiii) after the Class Principal Balance of the Class AJ
Certificates has been reduced to zero, to make distributions of principal
to the Holders of the Class B Certificates, in an amount (not to exceed
the Class Principal Balance of the Class B Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Sequential Pay Certificates and/or to the Floating Rate Account with
respect to the Class A-3FL REMIC II Regular Interest and/or the Class
A-4FC REMIC II Regular Interest pursuant to any prior clause of this
Section 4.01(a));
(xiv) to make distributions to the Holders of the Class B
Certificates, in an amount equal to, and in reimbursement of, all Realized
Losses and Additional Trust Fund Expenses, if any, previously allocated to
the Class B Certificates and not previously reimbursed;
(xv) to make distributions of interest to the Holders of the Class C
Certificates in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xvi) after the Class Principal Balance of the Class B Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class C Certificates, in an amount (not to exceed the Class
Principal Balance of the Class C Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Sequential Pay Certificates and/or to the Floating Rate Account with
respect to the Class A-3FL REMIC II Regular Interest and/or the Class
A-4FC REMIC II Regular Interest pursuant to any prior clause of this
Section 4.01(a));
(xvii) to make distributions to the Holders of the Class C
Certificates, in an amount equal to, and in reimbursement of, all Realized
Losses and Additional Trust Fund Expenses, if any, previously allocated to
the Class C Certificates and not previously reimbursed;
(xviii) to make distributions of interest to the Holders of the
Class D Certificates, in an amount equal to all Distributable Certificate
Interest in respect of the Class D Certificates for such Distribution Date
and, to the extent not previously paid, for all prior Distribution Dates;
(xix) after the Class Principal Balance of the Class C Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class D Certificates, in an amount (not to exceed the Class
Principal Balance of the Class D Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Sequential Pay Certificates and/or to the Floating Rate Account with
respect to the Class A-3FL REMIC II Regular Interest and/or the Class
A-4FC REMIC II Regular Interest pursuant to any prior clause of this
Section 4.01(a));
(xx) to make distributions to the Holders of the Class D
Certificates, in an amount equal to, and in reimbursement of, all Realized
Losses and Additional Trust Fund Expenses, if any, previously allocated to
the Class D Certificates and not previously reimbursed;
(xxi) to make distributions of interest to the Holders of the Class
E Certificates, in an amount equal to all Distributable Certificate
Interest in respect of the Class E Certificates for such Distribution Date
and, to the extent not previously paid, for all prior Distribution Dates;
(xxii) after the Class Principal Balance of the Class D Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class E Certificates, in an amount (not to exceed the Class
Principal Balance of the Class E Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Sequential Pay Certificates and/or to the Floating Rate Account with
respect to the Class A-3FL REMIC II Regular Interest and/or the Class
A-4FC REMIC II Regular Interest pursuant to any prior clause of this
Section 4.01(a));
(xxiii) to make distributions to the Holders of the Class E
Certificates, in an amount equal to, and in reimbursement of, all Realized
Losses and Additional Trust Fund Expenses, if any, previously allocated to
the Class E Certificates and not previously reimbursed;
(xxiv) to make distributions of interest to the Holders of the Class
F Certificates, in an amount equal to all Distributable Certificate
Interest in respect of the Class F Certificates for such Distribution Date
and, to the extent not previously paid, for all prior Distribution Dates;
(xxv) after the Class Principal Balance of the Class E Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class F Certificates, in an amount (not to exceed the Class
Principal Balance of the Class F Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Sequential Pay Certificates and/or to the Floating Rate Account with
respect to the Class A-3FL REMIC II Regular Interest and/or the Class
A-4FC REMIC II Regular Interest pursuant to any prior clause of this
Section 4.01(a));
(xxvi) to make distributions to the Holders of the Class F
Certificates, in an amount equal to, and in reimbursement of, all Realized
Losses and Additional Trust Fund Expenses, if any, previously allocated to
the Class F Certificates and not previously reimbursed;
(xxvii) to make distributions of interest to the Holders of the
Class G Certificates, in an amount equal to all Distributable Certificate
Interest in respect of the Class G Certificates for such Distribution Date
and, to the extent not previously paid, for all prior Distribution Dates;
(xxviii) after the Class Principal Balance of the Class F
Certificates has been reduced to zero, to make distributions of principal
to the Holders of the Class G Certificates, in an amount (not to exceed
the Class Principal Balance of the Class G Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Sequential Pay Certificates and/or the Floating Rate Account with respect
to the Class A-3FL REMIC II Regular Interest and/or to the Class A-4FC
REMIC II Regular Interest pursuant to any prior clause of this Section
4.01(a));
(xxix) to make distributions to the Holders of the Class G
Certificates, in an amount equal to, and in reimbursement of, all Realized
Losses and Additional Trust Fund Expenses, if any, previously allocated to
the Class G Certificates and not previously reimbursed;
(xxx) to make distributions of interest to the Holders of Class H
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class H Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xxxi) after the Class Principal Balance of the Class G Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class H Certificates, in an amount (not to exceed the Class
Principal Balance of the Class H Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Sequential Pay Certificates and/or to the Floating Rate Account with
respect to the Class A-3FL REMIC II Regular Interest and/or the Class
A-4FC REMIC II Regular Interest pursuant to any prior clause of this
Section 4.01(a));
(xxxii) to make distributions to the Holders of the Class H
Certificates in an amount equal to, and in reimbursement of, all Realized
Losses and Additional Trust Fund Expenses, if any, previously allocated to
the Class H Certificates and not previously reimbursed;
(xxxiii) to make distributions of interest to the Holders of the
Class J Certificates, in an amount equal to all Distributable Certificate
Interest in respect of the Class J Certificates for such Distribution Date
and, to the extent not previously paid, for all prior Distribution Dates;
(xxxiv) after the Class Principal Balance of the Class H
Certificates has been reduced to zero, to make distributions of principal
to the Holders of the Class J Certificates, in an amount (not to exceed
the Class Principal Balance of the Class J Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Sequential Pay Certificates and/or to the Floating Rate Account with
respect to the Class A-3FL REMIC II Regular Interest and/or the Class
A-4FC REMIC II Regular Interest pursuant to any prior clause of this
Section 4.01(a));
(xxxv) to make distributions to the Holders of the Class J
Certificates, in an amount equal to, and in reimbursement of, all Realized
Losses and Additional Trust Fund Expenses, if any, previously allocated to
the Class J Certificates and not previously reimbursed;
(xxxvi) to make distributions of interest to the Holders of the
Class K Certificates, in an amount equal to all Distributable Certificate
Interest in respect of the Class K Certificates for such Distribution Date
and, to the extent not previously paid, for all prior Distribution Dates;
(xxxvii) after the Class Principal Balance of the Class J
Certificates has been reduced to zero, to make distributions of principal
to the Holders of the Class K Certificates, in an amount (not to exceed
the Class Principal Balance of the Class K Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Sequential Pay Certificates and/or to the Floating Rate Account with
respect to the Class A-3FL REMIC II Regular Interest and/or the Class
A-4FC REMIC II Regular Interest pursuant to any prior clause of this
Section 4.01(a));
(xxxviii) to make distributions to the Holders of the Class K
Certificates, in an amount equal to, and in reimbursement of, all Realized
Losses and Additional Trust Fund Expenses, if any, previously allocated to
the Class K Certificates and not previously reimbursed;
(xxxix) to make distributions of interest to the Holders of the
Class L Certificates, in an amount equal to all Distributable Certificate
Interest in respect of the Class L Certificates for such Distribution Date
and, to the extent not previously paid, for all prior Distribution Dates;
(xl) after the Class Principal Balance of the Class K Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class L Certificates, in an amount (not to exceed the Class
Principal Balance of the Class L Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Sequential Pay Certificates and/or to the Floating Rate Account with
respect to the Class A-3FL REMIC II Regular Interest and/or the Class
A-4FC REMIC II Regular Interest pursuant to any prior clause of this
Section 4.01(a));
(xli) to make distributions to the Holders of the Class L
Certificates, in an amount equal to, and in reimbursement of, all Realized
Losses and Additional Trust Fund Expenses, if any, previously allocated to
the Class L Certificates and not previously reimbursed;
(xlii) to make distributions of interest to the Holders of the Class
M Certificates, in an amount equal to all Distributable Certificate
Interest in respect of the Class M Certificates for such Distribution Date
and, to the extent not previously paid, for all prior Distribution Dates;
(xliii) after the Class Principal Balance of the Class L
Certificates has been reduced to zero, to make distributions of principal
to the Holders of the Class M Certificates, in an amount (not to exceed
the Class Principal Balance of the Class M Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Sequential Pay Certificates and/or to the Floating Rate Account with
respect to the Class A-3FL REMIC II Regular Interest and/or the Class
A-4FC REMIC II Regular Interest pursuant to any prior clause of this
Section 4.01(a));
(xliv) to make distributions to the Holders of the Class M
Certificates, in an amount equal to, and in reimbursement of, all Realized
Losses and Additional Trust Fund Expenses, if any, previously allocated to
the Class M Certificates and not previously reimbursed;
(xlv) to make distributions of interest to the Holders of the Class
N Certificates, in an amount equal to all Distributable Certificate
Interest in respect of the Class N Certificates for such Distribution Date
and, to the extent not previously paid, for all prior Distribution Dates;
(xlvi) after the Class Principal Balance of the Class M Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class N Certificates, in an amount (not to exceed the Class
Principal Balance of the Class N Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Sequential Pay Certificates and/or to the Floating Rate Account with
respect to the Class A-3FL REMIC II Regular Interest and/or the Class
A-4FC REMIC II Regular Interest pursuant to any prior clause of this
Section 4.01(a));
(xlvii) to make distributions to the Holders of the Class N
Certificates, in an amount equal to, and in reimbursement of, all Realized
Losses and Additional Trust Fund Expenses, if any, previously allocated to
the Class N Certificates and not previously reimbursed;
(xlviii) to make distributions of interest to the Holders of the
Class P Certificates, in an amount equal to all Distributable Certificate
Interest in respect of the Class P Certificates for such Distribution Date
and, to the extent not previously paid, for all prior Distribution Dates;
(xlix) after the Class Principal Balance of the Class N Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class P Certificates, in an amount (not to exceed the Class
Principal Balance of the Class P Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Sequential Pay Certificates and/or to the Floating Rate Account with
respect to the Class A-3FL REMIC II Regular Interest and/or the Class
A-4FC REMIC II Regular Interest pursuant to any prior clause of this
Section 4.01(a));
(l) to make distributions to the Holders of the Class P
Certificates, in an amount equal to, and in reimbursement of, all Realized
Losses and Additional Trust Fund Expenses, if any, previously allocated to
the Class P Certificates and not previously reimbursed;
(li) to make distributions of interest to the Holders of the Class Q
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class Q Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(lii) after the Class Principal Balance of the Class P Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class Q Certificates, in an amount (not to exceed the Class
Principal Balance of the Class Q Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Sequential Pay Certificates and/or the Floating Rate Account with respect
to the Class A-3FL REMIC II Regular Interest and/or to the Class A-4FC
REMIC II Regular Interest pursuant to any prior clause of this Section
4.01(a));
(liii) to make distributions to the Holders of the Class Q
Certificates, in an amount equal to, and in reimbursement of, all Realized
Losses and Additional Trust Fund Expenses, if any, previously allocated to
the Class Q Certificates and not previously reimbursed;
(liv) to make distributions to the Holders of the Class R-II
Certificates, in an amount equal to the excess, if any, of (A) the
aggregate distributions deemed made in respect of the REMIC I Regular
Interests on such Distribution Date pursuant to Section 4.01(h), over (B)
the aggregate distributions made in respect of the Regular Certificates,
the Class A-3FL REMIC II Regular Interest and the Class A-4FC REMIC II
Regular Interest on such Distribution Date pursuant to clauses (i) through
(li) above; and
(lv) to make distributions to the Holders of the Class R-I
Certificates of the excess, if any, of (A) the Available Distribution
Amount for such Distribution Date, over (B) the aggregate distributions
made in respect of the REMIC II Certificates, the Class A-3FL REMIC II
Regular Interest and the Class A-4FC REMIC II Regular Interest on such
Distribution Date pursuant to clauses (i) through (lii) above.
Distributions in reimbursement of Realized Losses and Additional
Trust Fund Expenses previously allocated to a Class of Sequential Pay
Certificates, the Class A-3FL REMIC II Regular Interest or the Class A-4FC REMIC
II Regular Interest shall not constitute distributions of principal and shall
not result in reduction of the related Class Principal Balance.
All distributions of interest made in respect of the Class X
Certificates on any Distribution Date pursuant to clause (i) above, shall be
deemed to have been made in respect of all the Class X Components, pro rata in
accordance with the respective amounts of Accrued Component Interest with
respect to such Class X Components for such Distribution Date, together with any
amounts thereof remaining unpaid from previous Distribution Dates.
(b) On each Distribution Date, the Certificate Administrator shall
withdraw from the Distribution Account any amounts on deposit therein that
represent Prepayment Premiums and/or Yield Maintenance Charges actually
collected on the Trust Mortgage Loans and any Trust REO Loans during the related
Collection Period (excluding any portion of such Prepayment Premiums and/or
Yield Maintenance Charges applied pursuant to Section 4.01(j) to reimburse the
Holders of one or more Classes of Sequential Pay Certificates and/or the
Floating Rate Account with respect to the Class A-3FL REMIC II Regular Interest
and/or the Class A-4FC REMIC II Regular Interest in respect of Realized Losses
and/or Additional Trust Fund Expenses previously allocated to such Classes) and
shall be deemed to distribute such Prepayment Premiums and/or Yield Maintenance
Charges (or remaining portion thereof) from REMIC I to REMIC II in respect of
REMIC I Regular Interest LA-1 (whether or not such REMIC I Regular Interest has
received all distributions of interest and principal to which it is entitled),
and then shall distribute each such Prepayment Premium and/or Yield Maintenance
Charge (or remaining portion thereof), as additional yield, regardless of
whether that prepayment consideration is calculated as a percentage of the
amount prepaid or in accordance with a yield maintenance formula, as follows:
(i) first, to the Holders of the respective Classes of Sequential
Pay Certificates (other than any Excluded Class thereof) entitled to
distributions of principal pursuant to Section 4.01(a) on such
Distribution Date with respect to the Loan Group that includes the prepaid
Trust Mortgage Loan or Trust REO Loan, as the case may be, and to the
Floating Rate Account with respect to the Class A-3FL REMIC II Regular
Interest and/or the Class A-4FC REMIC II Regular Interest (if, in either
such case, distributions of principal are being made with respect thereto
on such Distribution Date, pursuant to Section 4.01(a), with respect to
the Loan Group that includes the prepaid Trust Mortgage Loan or Trust REO
Loan, as the case may be), up to an amount equal to, and pro rata based
on, the Additional Yield and Prepayment Amount for each such Class of
Certificates, the Class A-3Fl REMIC II Regular Interest (if applicable)
and/or the Class A-4FC REMIC II Regular Interest (if applicable) for such
Distribution Date with respect to the subject Prepayment Premium or Yield
Maintenance Charge, as the case may be; and; and
(ii) second, to the Holders of the Class X Certificates, to the
extent of any remaining portion of the subject Yield Maintenance Charge or
Prepayment Premium, as the case may be (excluding any portion of such
Prepayment Premium and/or Yield Maintenance Charge applied pursuant to
Section 4.01(k) to reimburse one or more Classes of Sequential Pay
Certificates and/or the Floating Rate Account with respect to the Class
A-3FL REMIC II Regular Interest and/or the Class A-4FC REMIC II Regular
Interest in respect of Realized Losses and/or Additional Trust Fund
Expenses previously allocated to such Classes), as follows.
On each Distribution Date, the Certificate Administrator shall
withdraw from the Additional Interest Account any amounts that represent
Additional Interest actually collected during the related Collection Period on
the ARD Loans and any related REO Loans and shall distribute such amounts among
the Holders of the Class Z Certificates pro rata in accordance with their
respective Percentage Interests of such Class.
(c) Subject to Section 4.07, on each Distribution Date, the
Certificate Administrator shall apply amounts on deposit in the Class A-3FL
Sub-Account of the Floating Rate Account for the following purposes and in the
following order of priority, in each case to the extent of the Class A-3FL
Available Funds (exclusive of any portion thereof that constitutes Yield
Maintenance Charges and/or Prepayment Premiums) for such Distribution Date:
(i) to make distributions of interest to the Holders of the Class
A-3FL Certificates, up to the Class A-3FL Interest Distribution Amount for
such Distribution Date;
(ii) to make distributions of principal to the Holders of the Class
A-3FL Certificates, in reduction of the Class Principal Balance thereof,
up to the Class A-3FL Principal Distribution Amount for such Distribution
Date, until such Class Principal Balance has been reduced to zero;
(iii) to reimburse the Holders of the Class A-3FL Certificates,
until all Realized Losses and Additional Trust Fund Expenses previously
allocated to the Class A-3FL Certificates, but not previously reimbursed,
have been reimbursed in full; and
(iv) to make distributions to the Holders of the Class A-3FL
Certificates of any remaining amount.
For so long as the Class A-3FL Swap Agreement is in effect and there is no
continuing payment default thereunder on the part of the A-3FL Swap
Counterparty, all Prepayment Premiums and Yield Maintenance Charges allocable to
the Class A-3FL REMIC II Regular Interest shall be payable to the A-3FL Swap
Counterparty pursuant to the terms of the Class A-3FL Swap Agreement. However,
during the occurrence of a payment default on the part of the A-3FL Swap
Counterparty under the Class A-3FL Swap Agreement or if the Class A-3FL Swap
Agreement is terminated and a replacement Class A-3FL Swap Agreement is not
obtained, then all Prepayment Premiums and Yield Maintenance Charges distributed
to the Floating Rate Account with respect to the Class A-3FL REMIC II Regular
Interest shall be distributed by the Certificate Administrator to the Holders of
the Class A-3FL Certificates on the subject Distribution Date.
Subject to Section 4.07, on each Distribution Date, the Certificate
Administrator shall apply amounts on deposit in the Class A-4FC Sub-Account of
the Floating Rate Account for the following purposes and in the following order
of priority, in each case to the extent of the Class A-4FC Available Funds
(exclusive of any portion thereof that constitutes Yield Maintenance Charges
and/or Prepayment Premiums) for such Distribution Date:
(i) to make distributions of interest to the Holders of the Class
A-4FC Certificates, up to the Class A-4FC Interest Distribution Amount for
such Distribution Date;
(ii) to make distributions of principal to the Holders of the Class
A-4FC Certificates, in reduction of the Class Principal Balance thereof,
up to the Class A-4FC Principal Distribution Amount for such Distribution
Date, until such Class Principal Balance has been reduced to zero;
(iii) to reimburse the Holders of the Class A-4FC Certificates,
until all Realized Losses and Additional Trust Fund Expenses previously
allocated to the Class A-4FC Certificates, but not previously reimbursed,
have been reimbursed in full; and
(iv) to make distributions to the Holders of the Class A-4FC
Certificates of any remaining amount.
For so long as the Class A-4FC Swap Agreement is in effect and there is no
continuing payment default thereunder on the part of the A-4FC Swap
Counterparty, all Prepayment Premiums and Yield Maintenance Charges allocable to
the Class A-4FC REMIC II Regular Interest shall be payable to the A-4FC Swap
Counterparty pursuant to the terms of the A-4FC Swap Agreement. However, during
the occurrence of a payment default on the part of the A-4FC Swap Counterparty
under the A-4FC Swap Agreement or if the A-4FC Swap Agreement is terminated and
a replacement Class A-4FC Swap Agreement is not obtained, then all Prepayment
Premiums and Yield Maintenance Charges distributed to the Floating Rate Account
with respect to the Class A-4FC REMIC II Regular Interest shall be distributed
by the Certificate Administrator to the Holders of the Class A-4FC Certificates
on the subject Distribution Date.
(d) All distributions made with respect to each Class on each
Distribution Date shall be allocated pro rata among the outstanding Certificates
in such Class based on their respective Percentage Interests. Except as
otherwise provided below, all such distributions with respect to each Class on
each Distribution Date shall be made to the Certificateholders of the respective
Class of record at the close of business on the related Record Date and shall be
made by wire transfer of immediately available funds to the account of any such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Certificate
Administrator with wiring instructions no less than five Business Days prior to
(or, in the case of the initial Distribution Date, no later than) the related
Record Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent Distribution Dates), or otherwise by check mailed
to the address of such Certificateholder as it appears in the Certificate
Register. The final distribution on each Certificate (determined, in the case of
a Sequential Pay Certificate, without regard to any possible future
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to such Certificate) will be made in a like manner, but only upon
presentation and surrender of such Certificate at the offices of the Certificate
Registrar or such other location specified in the notice to Certificateholders
of such final distribution. Prior to any termination of the Trust Fund pursuant
to Section 9.01, any distribution that is to be made with respect to a
Certificate in reimbursement of a Realized Loss or Additional Trust Fund Expense
previously allocated thereto, which reimbursement is to occur after the date on
which such Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Certificateholder that
surrendered such Certificate as such address last appeared in the Certificate
Register or to any other address of which the Certificate Administrator was
subsequently notified in writing. If such check is returned to the Certificate
Administrator, the Certificate Administrator, directly or through an agent,
shall take such reasonable steps to contact the related Holder and deliver such
check as it shall deem appropriate. Any funds in respect of a check returned to
the Certificate Administrator shall be set aside by the Certificate
Administrator and held uninvested in trust and credited to the account of the
appropriate Holder. The costs and expenses of locating the appropriate Holder
and holding such funds shall be paid out of such funds. No interest shall accrue
or be payable to any former Holder on any amount held in trust hereunder. If the
Certificate Administrator has not, after having taken such reasonable steps,
located the related Holder by the second anniversary of the initial sending of a
check, the Certificate Administrator shall, subject to applicable law,
distribute the unclaimed funds to the Holders of the Class R-II Certificates.
(e) Each distribution with respect to a Book-Entry Certificate shall
be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the related Certificate Owners that it represents and to each indirect
participating brokerage firm (a "brokerage firm" or "indirect participating
firm") for which it acts as agent. Each brokerage firm shall be responsible for
disbursing funds to the related Certificate Owners that it represents. None of
the Trustee, the Certificate Registrar, the Depositor, the Master Servicer, the
Special Servicer or the Certificate Administrator have any responsibility
therefor except as otherwise provided by this Agreement or applicable law. The
Certificate Administrator and the Depositor shall perform their respective
obligations under a Letter of Representations among the Depositor, the
Certificate Administrator and the Initial Depository dated as of the Closing
Date.
(f) The rights of the Certificateholders to receive distributions
from the proceeds of the Trust Fund in respect of the Certificates, and all
rights and interests of the Certificateholders in and to such distributions,
shall be as set forth in this Agreement. Neither the Holders of any Class of
Certificates nor any party hereto shall in any way be responsible or liable to
the Holders of any other Class of Certificates in respect of amounts properly
previously distributed on the Certificates.
(g) Except as otherwise provided in Section 9.01, whenever the
Certificate Administrator receives written notification of or expects that the
final distribution with respect to any Class of Certificates (determined without
regard to any possible future reimbursement of any Realized Loss or Additional
Trust Fund Expense previously allocated to such Class of Certificates) will be
made on the next Distribution Date, the Certificate Administrator shall, no
later than five days after the related Determination Date, mail to each Holder
of record on such date of such Class of Certificates a notice to the effect
that:
(i) the Certificate Administrator expects that the final
distribution with respect to such Class of Certificates will be made on
such Distribution Date but only upon presentation and surrender of such
Certificates at the office of the Certificate Registrar or at such other
location therein specified, and
(ii) no interest shall accrue on such Certificates from and after
such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates
of such Class on such Distribution Date because of the failure of such Holder or
Holders to tender their Certificates shall, on such date, be set aside and held
uninvested in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(f) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Certificate Administrator 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 Certificate Administrator, 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 former
Holder on any amount held in trust pursuant to this paragraph. If all of the
Certificates shall not have been surrendered for cancellation by the second
anniversary of the delivery of the second notice, the Certificate Administrator
shall, subject to applicable law, distribute to the Holders of the Class R-II
Certificates all unclaimed funds and other assets which remain subject thereto.
(h) Notwithstanding any other provision of this Agreement, the
Certificate Administrator shall comply with all federal income tax withholding
requirements respecting payments to Certificateholders of interest or original
issue discount that the Certificate Administrator reasonably believes are
applicable under the Code. The Certificate Registrar shall promptly provide the
Certificate Administrator with any IRS Form W-9 or W-8 (including Form W-8ECI,
W-8BEN or W-IMY) upon its receipt thereof. The consent of Certificateholders
shall not be required for such withholding. If the Certificate Administrator
does withhold any amount from interest or original issue discount payments or
advances thereof to any Certificateholder pursuant to federal income tax
withholding requirements, the Certificate Administrator shall indicate the
amount withheld to such Certificateholders.
(i) All distributions of interest, principal and reimbursements of
previously allocated Realized Losses and Additional Trust Fund Expenses made in
respect of any Class of Sequential Pay Certificates (exclusive of the Class
A-3FL and the Class A-4FC Certificates), the Class A-3FL REMIC II Regular
Interest and the Class A-4FC REMIC II Regular Interest on each Distribution Date
pursuant to Section 4.01(a), 4.01(j), 4.01(k) or 9.01 shall be deemed to have
first been distributed from REMIC I to REMIC II in respect of its Corresponding
REMIC I Regular Interest(s). All distributions made in respect of the Class X
Certificates on each Distribution Date pursuant to Section 4.01(a) or Section
9.01, and allocable to any particular Class X Component in accordance with the
last paragraph of Section 4.01(a), shall be deemed to have first been
distributed from REMIC I to REMIC II in respect of such Class X Component's
Corresponding REMIC I Regular Interest. In each case, if such distribution on
any such Class of Regular Certificates, the Class A-3FL REMIC II Regular
Interest or the Class A-4FC REMIC II Regular Interest, as the case may be, was a
distribution of interest or principal or in reimbursement of previously
allocated Realized Losses and Additional Trust Fund Expenses in respect of such
Class of Regular Certificates, the Class A-3FL REMIC II Regular Interest or the
Class A-4FC REMIC II Regular Interest, as the case may be, then the
corresponding distribution deemed to be made on a REMIC I Regular Interest
pursuant to either of the preceding two sentences shall be deemed to also be a
distribution of interest or principal or in reimbursement of previously
allocated Realized Losses and Additional Trust Fund Expenses, as the case may
be, in respect of such REMIC I Regular Interest.
(j) On each Distribution Date, the Certificate Administrator shall
withdraw amounts from the Gain-on-Sale Reserve Account and shall distribute such
amounts to reimburse the Holders of the Sequential Pay Certificates (other than
the Class A-3FL Certificates and the Class A-4FC Certificates) and to reimburse
the Floating Rate Account with respect to the Class A-3FL REMIC II Regular
Interest and the Class A-4FC REMIC II Regular Interest (in the same order as
such reimbursements would be made pursuant to Section 4.01(a)), up to an amount
equal to all Realized Losses and Additional Trust Fund Expenses, if any,
previously deemed allocated to them and unreimbursed after application of the
Available Distribution Amount for such Distribution Date. Amounts paid from the
Gain-on-Sale Reserve Account will not reduce the Class Principal Balances of any
Class of Sequential Pay Certificate, the Class A-3FL REMIC II Regular Interest
and/or the Class A-4FC REMIC II Regular Interest. Any amounts remaining in the
Gain-on-Sale Reserve Account after such distributions shall be applied to offset
future Realized Losses and Additional Trust Fund Expense and, upon termination
of the Trust Fund, any amounts remaining in the Gain-on-Sale Reserve Account
shall be distributed to the Class R-I Certificateholders.
(k) On each Distribution Date, the Certificate Administrator shall
withdraw from the Distribution Account an amount equal to any Prepayment Premium
and/or Yield Maintenance Charge that was received in respect of a Trust
Specially Serviced Mortgage Loan during the related Collection Period to the
extent that Realized Losses and/or Additional Trust Fund Expenses had been
allocated to one or more Classes of Sequential Pay Certificates (other than the
Class A-3FL Certificates and the Class A-4FC Certificates), the Class A-3FL
REMIC II Regular Interest and/or the Class A-4FC REMIC II Regular Interest
pursuant to Section 4.04 and had not been previously reimbursed, and the
Certificate Administrator shall distribute such amounts to reimburse the Holders
of the Sequential Pay Certificates (other than the Class A-3FL Certificates and
the Class A-4FC Certificates) and to reimburse the Floating Rate Account with
respect to the Class A-3FL REMIC II Regular Interest and the Class A-4FC REMIC
II Regular Interest (in the same order as such reimbursements would be made
pursuant to Section 4.01(a)) up to an amount equal to all such Realized Losses
and Additional Trust Fund Expenses, if any, previously deemed allocated to them
and remaining unreimbursed after application of the Available Distribution
Amount for such Distribution Date and the amounts on deposit in the Gain-on-Sale
Reserve Account. Any such amounts paid from the Distribution Account will not
reduce the Class Principal Balances of any Class of Sequential Pay Certificates,
the Class A-3FL REMIC II Regular Interest or the Class A-4FC REMIC II Regular
Interest.
SECTION 4.02. Statements to Certificateholders.
(a) On each Distribution Date, the Certificate Administrator shall
make available electronically via its Internet Website or, upon written request,
by first class mail, to each Certificateholder, each initial Certificate Owner
and (upon written request made to the Certificate Administrator) each subsequent
Certificate Owner (as identified to the reasonable satisfaction of the
Certificate Administrator), the Depositor, the Master Servicer, the Special
Servicer, the Underwriters, each Rating Agency and any other Person designated
in writing by the Depositor, a statement (a "Distribution Date Statement"), as
to the distributions made on such Distribution Date, based solely on information
provided to it by the Master Servicer and the Special Servicer. Each
Distribution Date Statement shall be in the form set forth on Exhibit N hereto
and, in any event, shall set forth:
(i) the amount of the distribution on such Distribution Date to the
Holders of each Class of Sequential Pay Certificates in reduction of the
Class Principal Balance thereof;
(ii) the amount of the distribution on such Distribution Date to the
Holders of each Class of Regular Certificates allocable to Distributable
Certificate Interest;
(iii) the amount of the distribution on such Distribution Date to
the Holders of each Class of Regular Certificates, the Class A-3FL REMIC
II Regular Interest and/or the Class A-4FC REMIC II Regular Interest
allocable to Prepayment Premiums and/or Yield Maintenance Charges, the
Class A-3FL Interest Distribution Amount and/or the Class A-4FC Interest
Distribution Amount, as the case may be;
(iv) the amount of the distribution on such Distribution Date to the
Holders of each Class of Sequential Pay Certificates in reimbursement of
previously allocated Realized Losses and Additional Trust Fund Expenses;
(v) the Available Distribution Amount for such Distribution Date and
the respective portions thereof allocable to each Loan Group;
(vi) (a) the aggregate amount of P&I Advances made with respect to
the entire Mortgage Pool, and made with respect to each Loan Group, for
such Distribution Date pursuant to Section 4.03(a), including, without
limitation, any amounts applied pursuant to Section 4.03(a)(ii), and the
aggregate amount of xxxxxxxxxxxx X&X Advances made with respect to the
entire Mortgage Pool, and made with respect to each Loan Group, that had
been outstanding at the close of business on the related Determination
Date and the aggregate amount of interest accrued and payable to the
Master Servicer or the Trustee in respect of such xxxxxxxxxxxx X&X
Advances in accordance with Section 4.03(d) as of the close of business on
the related Determination Date, (b) the aggregate amount of Servicing
Advances made with respect to the entire Mortgage Pool, and made with
respect to each Loan Group, as of the close of business on the related
Determination Date and (c) the aggregate amount of all Nonrecoverable
Advances made with respect to the entire Mortgage Pool, and made with
respect to each Loan Group, as of the close of business on the related
Determination Date;
(vii) the aggregate unpaid principal balance of the Mortgage Pool
and of each Loan Group outstanding as of the close of business on the
related Determination Date;
(viii) the aggregate Stated Principal Balance of the Mortgage Pool
and of each Loan Group outstanding immediately before and immediately
after such Distribution Date;
(ix) the number, aggregate principal balance, weighted average
remaining term to maturity and weighted average Mortgage Rate of the Trust
Mortgage Loans as of the close of business on the related Determination
Date;
(x) the number, aggregate unpaid principal balance (as of the close
of business on the related Determination Date) and aggregate Stated
Principal Balance (immediately after such Distribution Date) of the Trust
Mortgage Loans (A) delinquent 30-59 days, (B) delinquent 60-89 days, (C)
delinquent more than 89 days, (D) as to which foreclosure proceedings have
been commenced, and (E) to the actual knowledge of the Master Servicer or
Special Servicer, in bankruptcy proceedings;
(xi) as to each Trust Mortgage Loan referred to in the preceding
clause (x) above, (A) the loan number thereof, (B) the Stated Principal
Balance thereof immediately following such Distribution Date, and (C) a
brief description of any executed loan modification;
(xii) with respect to any Trust Mortgage Loan as to which a
Liquidation Event occurred during the related Collection Period (other
than a payment in full), (A) the loan number thereof, (B) the aggregate of
all Liquidation Proceeds and other amounts received in connection with
such Liquidation Event (separately identifying the portion thereof
allocable to distributions on the Certificates), and (C) the amount of any
Realized Loss in connection with such Liquidation Event;
(xiii) with respect to any REO Property included in the Trust Fund
as to which a Final Recovery Determination was made during the related
Collection Period, (A) the loan number of the related Trust Mortgage Loan,
(B) the aggregate of all Liquidation Proceeds and other amounts received
in connection with such Final Recovery Determination (separately
identifying the portion thereof allocable to distributions on the
Certificates), and (C) the amount of any Realized Loss in respect of the
related Trust REO Loan in connection with such Final Recovery
Determination;
(xiv) the Accrued Certificate Interest and Distributable Certificate
Interest in respect of each Class of Regular Certificates, the Class A-3FL
REMIC II Regular Interest and the Class A-4FC REMIC II Regular Interest
for such Distribution Date;
(xv) any unpaid Distributable Certificate Interest in respect of
each Class of Regular Certificates, the Class A-3FL REMIC II Regular
Interest and the Class A-4FC REMIC II Regular Interest, respectively, as
well as any unpaid portion of the Class A-3FL Interest Distribution Amount
and the Class A-4FC Interest Distribution Amount, respectively, after
giving effect to the distributions made on such Distribution Date;
(xvi) the Pass-Through Rate for each Class of Regular Certificates,
the Class A-3FL REMIC II Regular Interest, the Class A-4FC REMIC II
Regular Interest, the Class A-3FL Certificates and the Class A-4FC
Certificates, for such Distribution Date;
(xvii) the Principal Distribution Amount, the Loan Group 1 Principal
Distribution Amount and the Loan Group 2 Principal Distribution Amount for
such Distribution Date, in each case separately identifying the respective
components thereof (and, in the case of any Principal Prepayment or other
unscheduled collection of principal received during the related Collection
Period, the loan number for the related Trust Mortgage Loan and the amount
of such prepayment or other collection of principal);
(xviii) the aggregate of all Realized Losses incurred during the
related Collection Period and all Additional Trust Fund Expenses incurred
during the related Collection Period;
(xix) the aggregate of all Realized Losses and Additional Trust Fund
Expenses that were allocated on such Distribution Date;
(xx) the Class Principal Balance of each Class of Sequential Pay
Certificate, as well as the Class X Notional Amount, as applicable, of
each Class of Regular Certificates outstanding immediately before and
immediately after such Distribution Date, separately identifying any
reduction therein due to the allocation of Realized Losses and Additional
Trust Fund Expenses on such Distribution Date;
(xxi) the Certificate Factor for each Class of Regular Certificates,
the Class A-3FL Certificates and the Class A-4FC Certificates,
respectively, immediately following such Distribution Date;
(xxii) the aggregate amount of interest on P&I Advances in respect
of the Mortgage Pool in respect of each Loan Group paid to the Master
Servicer and the Trustee during the related Collection Period in
accordance with Section 4.03(d);
(xxiii) the aggregate amount of interest on Servicing Advances in
respect of the Mortgage Pool in respect of each Loan Group paid to the
Master Servicer, the Special Servicer and the Trustee during the related
Collection Period in accordance with Section 3.03(d);
(xxiv) the aggregate amount of servicing compensation paid to the
Master Servicer and the Special Servicer during the related Collection
Period;
(xxv) the loan number for each Trust Required Appraisal Mortgage
Loan and any related Appraisal Reduction Amount as of the related
Determination Date;
(xxvi) the original and then current credit support levels for each
Class of Regular Certificates, the Class A-3FL Certificates and the Class
A-4FC Certificates, respectively;
(xxvii) the original and then current ratings known to the
Certificate Administrator for each Class of Regular Certificates, the
Class A-3FL Certificates and the Class A-4FC Certificates, respectively;
(xxviii) the aggregate amount of Prepayment Premiums and Yield
Maintenance Charges collected during the related Collection Period;
(xxix) 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;
(xxx) the amounts, if any, actually distributed with respect to the
Class Z Certificates, the Class R-I Certificates and the Class R-II
Certificates, respectively, on such Distribution Date; and
(xxxi) all payments to and from each Swap Counterparty during the
month of such Distribution Date and the respective components thereof.
In the case of information to be furnished pursuant to clauses (i)
through (iv) above, the amounts shall be expressed as a dollar amount in the
aggregate for all Certificates of each applicable Class and per Single
Certificate. In the case of information provided to the Certificate
Administrator as a basis for information to be furnished pursuant to clauses (x)
through (xiii), (xxiv) and (xxix) above, insofar as the underlying information
is solely within the control of the Special Servicer, the Certificate
Administrator and the Master Servicer may, absent manifest error, conclusively
rely on the reports to be provided by the Special Servicer.
The Certificate Administrator may conclusively rely on and shall not
be responsible absent manifest error for the content or accuracy of any
information provided by third parties for purposes of preparing the Distribution
Date Statement and may affix thereto any disclaimer it deems appropriate in its
reasonable discretion (without suggesting liability on the part of any other
party hereto).
On each Distribution Date, the Certificate Administrator shall make
available via its Internet Website the information specified in Section 3.15(b)
to the Persons specified therein. Absent manifest error, none of the Master
Servicer or the Special Servicer shall be responsible for the accuracy or
completeness of any information supplied to it by a Mortgagor or third party
that is included in any reports, statements, materials or information prepared
or provided by the Master Servicer or the Special Servicer, as applicable. The
Certificate Administrator shall not be responsible, absent manifest error, for
the accuracy or completeness of any information supplied to it for delivery
pursuant to this Section. None of the Certificate Administrator, the Trustee,
the Master Servicer or the Special Servicer shall have any obligation to verify
the accuracy or completeness of any information provided by a Mortgagor or third
party.
Within a reasonable period of time after the end of each calendar
year, the Certificate Administrator shall send to each Person who at any time
during the calendar year was a Certificateholder of record, a report summarizing
on an annual basis (if appropriate) the items provided to Certificateholders
pursuant to clauses (i), (ii), (iii) and (iv) of the description of
"Distribution Date Statement" above and such other information as may be
required to enable such Certificateholders to prepare their federal income tax
returns. Such information shall include the amount of original issue discount
accrued on each Class of Certificates and information regarding the expenses of
the Trust Fund. Such requirement shall be deemed to be satisfied to the extent
such information is provided pursuant to applicable requirements of the Code
from time to time in force.
If any Certificate Owner does not receive through the Depository or
any of its Depository Participants any of the statements, reports and/or other
written information described above in this Section 4.02(a) that it would
otherwise be entitled to receive if it were the Holder of a Definitive
Certificate evidencing its ownership interest in the related Class of Book Entry
Certificates, then the Certificate Administrator shall mail or cause the mailing
of, or provide electronically or cause the provision electronically of, such
statements, reports and/or other written information to such Certificate Owner
upon the request of such Certificate Owner made in writing to the Corporate
Trust Office (accompanied by current verification of such Certificate Owner's
ownership interest). Such portion of such information as may be agreed upon by
the Depositor and the Certificate Administrator shall be furnished to any such
Person via overnight courier delivery or facsimile from the Certificate
Administrator; provided that the cost of such overnight courier delivery or
facsimile shall be an expense of the party requesting such information.
The Certificate Administrator shall only be obligated to deliver the
statements, reports and information contemplated by this Section 4.02(a) to the
extent it receives the necessary underlying information from the Special
Servicer or Master Servicer, as applicable, and shall not be liable for any
failure to deliver any thereof on the prescribed due dates, to the extent caused
by failure to receive timely such underlying information. Nothing herein shall
obligate the Certificate Administrator or the Master Servicer to violate any
applicable law prohibiting disclosure of information with respect to any
Mortgagor and the failure of the Certificate Administrator, Master Servicer or
the Special Servicer to disseminate information for such reason shall not be a
breach hereof.
(b) In the performance of its obligations set forth in Section 4.05
and its other duties hereunder, the Certificate Administrator may, absent bad
faith, conclusively rely on reports provided to it by the Master Servicer, and
the Certificate Administrator shall not be responsible to recompute, recalculate
or verify the information provided to it by the Master Servicer.
SECTION 4.03. P&I Advances; Reimbursement of P&I Advances and
Servicing Advances.
(a) On each P&I Advance Date, the Master Servicer shall (i) apply
amounts in the Collection Account received after the end of the related
Collection Period or otherwise held for future distribution to
Certificateholders in subsequent months in discharge of its obligation to make
P&I Advances or (ii) subject to Section 4.03(c) below, remit from its own funds
to the Certificate Administrator for deposit into the Distribution Account an
amount equal to the aggregate amount of P&I Advances, if any, to be made in
respect of the related Distribution Date. The Master Servicer may also make P&I
Advances in the form of any combination of clauses (i) and (ii) above
aggregating the total amount of P&I Advances to be made. Any amounts held in the
Collection Account for future distribution and so used to make P&I Advances
shall be appropriately reflected in the Master Servicer's records and replaced
by the Master Servicer by deposit in the Collection Account on or before the
next succeeding Determination Date (to the extent not previously replaced
through the deposit of Late Collections of the delinquent principal and interest
in respect of which such P&I Advances were made). If, as of 3:00 p.m. (New York
City time) on any P&I Advance Date, the Master Servicer shall not have made any
P&I Advance required to be made on such date pursuant to this Section 4.03(a)
(and shall not have delivered to the Trustee and the Certificate Administrator
the requisite Officer's Certificate and documentation related to a determination
of nonrecoverability of a P&I Advance), then the Certificate Administrator shall
provide notice of such failure to a Servicing Officer of the Master Servicer
(with a copy to the Trustee) (i) by facsimile transmission sent to the facsimile
number (000) 000-0000 and (ii) by telephone (000) 000-0000 (or in each case such
alternative number provided by the Master Servicer to the Certificate
Administrator in writing) as soon as possible, but in any event before 4:00 p.m.
(New York City time) on such P&I Advance Date. If the Certificate Administrator
does not receive the full amount of such P&I Advances by 11:00 a.m. (New York
City time) on the related Distribution Date, then, subject to Section 4.03(c),
(i) the Trustee shall, no later than 12:00 p.m. (New York City time), on such
related Distribution Date make the portion of such P&I Advances that was
required to be, but was not, made by the Master Servicer on such P&I Advance
Date, and (ii) with respect to the Master Servicer, the provisions of Sections
7.01 and 7.02 shall apply.
(b) The aggregate amount of P&I Advances to be made by the Master
Servicer or the Trustee in respect of the Mortgage Pool for any Distribution
Date shall, subject to Section 4.03(c) below, equal the aggregate of all
Periodic Payments (other than Balloon Payments) and any Assumed Periodic
Payments, net of related Master Servicing Fees (and, in the case of the Glendale
Galleria Trust Mortgage Loan, net of the MLMT Series 2005-CKI1 Servicing Fee),
in respect of the Trust Mortgage Loans (including, without limitation, Trust
Balloon Loans delinquent as to their respective Balloon Payments) and any Trust
REO Loans on their respective Due Dates during the related Collection Period, in
each case to the extent such amount was not paid by or on behalf of the related
Mortgagor or otherwise collected (including as net income from REO Properties)
as of the close of business on the related Determination Date; provided that:
(x) if the Periodic Payment on any Trust Mortgage Loan has been reduced in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment granted or agreed to by the
Special Servicer pursuant to Section 3.20 (or, in the case of the Glendale
Galleria Trust Mortgage Loan, by the MLMT Series 2005-CKI1 Applicable Servicer
pursuant to the MLMT Series 2005-CKI1 Pooling and Servicing Agreement), or if
the final maturity on any Trust Mortgage Loan shall be extended in connection
with a bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment granted or agreed to by the Special Servicer
pursuant to Section 3.20 (or, in the case of the Glendale Galleria Trust
Mortgage Loan, by the MLMT Series 2005-CKI1 Applicable Servicer pursuant to the
MLMT Series 2005-CKI1 Pooling and Servicing Agreement), and the Periodic Payment
due and owing during the extension period is less than the related Assumed
Periodic Payment, then the Master Servicer or the Trustee shall, as to such
Trust Mortgage Loan only, advance only the amount of the Periodic Payment due
and owing after taking into account such reduction (net of related Master
Servicing Fees and, in the case of the Glendale Galleria Trust Mortgage Loan,
net of the MLMT Series 2005-CKI1 Servicing Fee) in the event of subsequent
delinquencies thereon; and (y) if any Trust Mortgage Loan or Trust REO Loan is a
Required Appraisal Mortgage Loan as to which it is determined that an Appraisal
Reduction Amount exists or, in the case of the Glendale Galleria Trust Mortgage
Loan, the MLMT Series 2005-CKI1 Applicable Servicer has determined that an
Appraisal Reduction Amount exists under the MLMT Series 2005-CKI1 Pooling and
Servicing Agreement, then, with respect to the Distribution Date immediately
following the date of such determination and with respect to each subsequent
Distribution Date for so long as such Appraisal Reduction Amount exists, the
Master Servicer or the Trustee will be required in the event of subsequent
delinquencies to advance in respect of such Trust Mortgage Loan or Trust REO
Loan, as the case may be, only an amount equal to the sum of (A) the interest
portion of the P&I Advance required to be made equal to the product of (1) the
amount of the interest portion of the P&I Advance for that Trust Mortgage Loan
or Trust REO Loan, as the case may be, for the related Distribution Date without
regard to this sentence, and (2) a fraction, expressed as a percentage, the
numerator of which is equal to the Stated Principal Balance of that Trust
Mortgage Loan or Trust REO Loan, as the case may be, immediately prior to the
related Distribution Date, net of the related Appraisal Reduction Amount, if
any, and the denominator of which is equal to the Stated Principal Balance of
that Trust Mortgage Loan or Trust REO Loan, as the case may be, immediately
prior to the related Distribution Date, and (B) the amount of the principal
portion of the P&I Advance that would otherwise be required without regard to
this clause (y). In the case of the Glendale Galleria Trust Mortgage Loan or any
successor Trust REO Loan with respect thereto, the reference to "Appraisal
Reduction Amount" in clause (y) of the proviso to the preceding sentence means
the portion of any Appraisal Reduction Amount with respect to the Glendale
Galleria Loan Combination that is allocable, in accordance with the definition
of "Appraisal Reduction Amount," to the Glendale Galleria Trust Mortgage Loan or
any successor Trust REO Loan with respect thereto, as the case may be.
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made hereunder if such P&I Advance would, if made,
constitute a Nonrecoverable P&I Advance. The determination by the Master
Servicer or Special Servicer that a prior P&I Advance (or, assuming that it was
still outstanding, any Unliquidated Advance in respect thereof) that has been
made constitutes a Nonrecoverable P&I Advance or that any proposed P&I Advance,
if made, would constitute a Nonrecoverable P&I Advance, shall be evidenced by an
Officer's Certificate delivered to the Trustee, the Certificate Administrator
and the Depositor on or before the related P&I Advance Date, setting forth the
basis for such determination, together with any other information, including
Appraisals (the cost of which may be paid out of the Collection Account pursuant
to Section 3.05(a)) (or, if no such Appraisal has been performed pursuant to
this Section 4.03(c), a copy of an Appraisal of the related Mortgaged Property
performed within the twelve months preceding such determination), related
Mortgagor operating statements and financial statements, budgets and rent rolls
of the related Mortgaged Properties, engineers' reports, environmental surveys
and any similar reports that the Master Servicer may have obtained consistent
with the Servicing Standard and at the expense of the Trust Fund, that support
such determination by the Master Servicer. As soon as practical after making
such determination, the Special Servicer shall report to the Master Servicer and
the Trustee, the Special Servicer's determination that any P&I Advance made with
respect to any previous Distribution Date or required to be made with respect to
the next following Distribution Date with respect to any Trust Specially
Serviced Mortgage Loan or Trust REO Loan is a Nonrecoverable P&I Advance. The
Master Servicer and the Trustee shall act in accordance with such determination
and shall be entitled to conclusively rely on such determination. The Trustee
shall be entitled to rely, conclusively, on any determination by the Master
Servicer that a P&I Advance, if made, would be a Nonrecoverable Advance (and the
Trustee shall rely on the Master Servicer's determination that the P&I Advance
would be a Nonrecoverable Advance if the Trustee determines that it does not
have sufficient time to make such determination); provided, however, that if the
Master Servicer has failed to make a P&I Advance for reasons other than a
determination by the Master Servicer or the Special Servicer that such P&I
Advance would be a Nonrecoverable Advance, the Trustee shall make such Advance
within the time periods required by Section 4.03(a) unless the Trustee in good
faith makes a determination prior to the times specified in Section 4.03(a) that
such P&I Advance would be a Nonrecoverable Advance. The Special Servicer, in
determining whether or not a P&I Advance previously made is, or a proposed P&I
Advance, if made, would be, a Nonrecoverable Advance, shall be subject to the
standards applicable to the Master Servicer hereunder. The Special Servicer
shall not be entitled to reverse a determination by the Master Servicer that a
P&I Advance is a Nonrecoverable Advance.
If the Master Servicer receives written notice that the primary
party responsible for making delinquency advances similar to P&I Advances under
any Glendale Galleria Pari Passu Non-Trust Loan Securitization Agreement has
determined, in accordance with the requirements of that agreement, that any such
delinquency advance made or to be made with respect to the Glendale Galleria
Pari Passu Non-Trust Loan (or any successor REO Loan with respect thereto) would
not ultimately be recoverable out of collections on the Glendale Galleria Pari
Passu Non-Trust Loan (or such REO Loan), then the Master Servicer shall deliver
written notice to such effect to the Trustee, the Certificate Administrator and
the Depositor.
If the Master Servicer or Special Servicer determines that any P&I
Advance made or to be made with respect to the Glendale Galleria Trust Mortgage
Loan (or any successor Trust REO Loan with respect thereto) is or, if made,
would be a Nonrecoverable P&I Advance, then the Master Servicer shall notify, in
writing, its counterpart in respect of any Glendale Galleria Pari Passu
Non-Trust Loan Related MBS within one (1) Business Day of such determination,
which written notice shall be accompanied by the supporting evidence for such
determination. The Master Servicer shall also notify, in writing, its
counterpart in respect of any Glendale Galleria Pari Passu Non-Trust Loan
Related MBS (within one (1) Business Day of such determination) if it
subsequently determines that P&I Advances made or to be made with respect to the
Glendale Galleria Trust Mortgage Loan (or any successor Trust REO Loan with
respect thereto) are no longer Nonrecoverable P&I Advances. Following a
determination of nonrecoverability by the Master Servicer or the Special
Servicer or by another party responsible for making delinquency advances similar
to P&I Advances with respect to the Glendale Galleria Pari Passu Non-Trust Loan
(or any successor REO Loan with respect thereto) in accordance with the
preceding paragraph, prior to the Master Servicer resuming P&I Advances with
respect to the Glendale Galleria Trust Mortgage Loan (or any successor Trust REO
Loan with respect thereto), the Master Servicer shall consult with its
counterpart under the securitization of the Glendale Galleria Pari Passu
Non-Trust Loan regarding whether circumstances with respect to the Glendale
Galleria Loan Combination have changed such that a proposed future P&I Advance
would not be a Nonrecoverable P&I Advance.
(d) In connection with the recovery by the Master Servicer or the
Trustee of any P&I Advance out of the Collection Account pursuant to Section
3.05(a), subject to the following sentence, the Master Servicer shall be
entitled to pay itself or the Trustee, as the case may be, out of any amounts
then on deposit in the Collection Account, interest at the Reimbursement Rate in
effect from time to time, accrued on the amount of such P&I Advance (to the
extent made with its own funds) from the date made to but not including the date
of reimbursement, such interest to be payable first out of Default Charges
received on the related Trust Mortgage Loan or Trust REO Loan during the
Collection Period in which such reimbursement is made, then from general
collections on the Trust Mortgage Loans then on deposit in the Collection
Account; provided, however, that no interest shall accrue on any P&I Advance
made with respect to a Trust Mortgage Loan if the related Periodic Payment is
received prior to the expiration of any applicable grace period or prior to the
related P&I Advance Date; and provided, further, that, if such P&I Advance was
made with respect to a Trust Mortgage Loan that is part of a Loan Combination or
any successor Trust REO Loan with respect thereto, then such interest on such
P&I Advance shall first be payable out of amounts on deposit in the related Loan
Combination Custodial Account in accordance with Section 3.05(e). Subject to
Section 4.03(f), the Master Servicer shall reimburse itself or the Trustee, as
applicable, for any outstanding P&I Advance made thereby as soon as practicable
after funds available for such purpose have been received by the Master
Servicer, and in no event shall interest accrue in accordance with this Section
4.03(d) on any P&I Advance as to which the corresponding Late Collection was
received by the Master Servicer on or prior to the related P&I Advance Date.
(e) In no event shall the Master Servicer or the Trustee make a P&I
Advance with respect to any Non-Trust Loan.
(f) Upon the determination that a previously made Advance is a
Nonrecoverable Advance, to the extent that the reimbursement thereof would
exceed the full amount of the principal portion of general collections deposited
in the Collection Account, the Master Servicer, the Special Servicer or the
Trustee, as applicable, at its own option, instead of obtaining reimbursement
for the remaining amount of such Nonrecoverable Advance immediately, may elect
to refrain from obtaining such reimbursement for such portion of the
Nonrecoverable Advance during the one-month Collection Period ending on the
then-current Determination Date. If any of the Master Servicer, the Special
Servicer or the Trustee makes such an election at 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, but for a period in the aggregate not to exceed 12-months;
it is acknowledged that, in such a subsequent period, such Nonrecoverable
Advance shall again be payable first from principal collections as described
above prior to payment from other collections). In connection with a potential
election by any of the Master Servicer, the Special Servicer 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, the Special
Servicer or the Trustee, as the case may be, shall further be authorized to wait
for principal collections to be received before making its determination of
whether to refrain from the reimbursement of a particular Nonrecoverable Advance
or portion thereof until the end of such Collection Period. The foregoing shall
not, however, be construed to limit any liability that may otherwise be imposed
on such Person for any failure by such Person to comply with the conditions to
making such an election under this subsection or to comply with the terms of
this subsection and the other provisions of this Agreement that apply once such
an election, if any, has been made. Any election by any of the Master Servicer,
the Special Servicer or the Trustee to refrain from reimbursing itself for any
Nonrecoverable Advance (together with interest thereon) or portion thereof with
respect to any Collection Period shall not be construed to impose on any of the
Master Servicer, the Special Servicer or the Trustee, as the case may be, any
obligation to make such an election (or any entitlement in favor of any
Certificateholder or any other Person to such an election) with respect to any
subsequent Collection Period or to constitute a waiver or limitation on the
right of the Master Servicer, the Special Servicer or the Trustee, as the case
may be, to otherwise be reimbursed for such Nonrecoverable Advance (together
with interest thereon). Any such election by any of the Master Servicer, the
Special Servicer or the Trustee shall not be construed to impose any duty on the
other such party to make such an election (or any entitlement in favor of any
Certificateholder or any other Person to such an election). Any such election by
any such party to refrain from reimbursing itself or obtaining reimbursement for
any Nonrecoverable Advance or portion thereof with respect to any one or more
Collection Periods shall not limit the accrual of interest on such
Nonrecoverable Advance for the period prior to the actual reimbursement of such
Nonrecoverable Advance. None of the Master Servicer, the Special Servicer, the
Trustee or the other parties to this Agreement shall have any liability to one
another or to any of the Certificateholders for any such election that such
party makes as contemplated by this subsection or for any losses, damages or
other adverse economic or other effects that may arise from such an election,
and any such election shall not, with respect to the Master Servicer or the
Special Servicer, constitute a violation of the Servicing Standard nor, with
respect to the Trustee, constitute a violation of any fiduciary duty to the
Certificateholders or any contractual duty under this Agreement. Nothing herein
shall give the Master Servicer, the Special Servicer or the Trustee the right to
defer reimbursement of a Nonrecoverable Advance to the extent that principal
collections then available in the Collection Account are sufficient to reimburse
such Nonrecoverable Advances pursuant to Section 3.05(a)(vii).
(g) The Trust shall reimburse the MLMT Series 2005-CKI1 Applicable
Servicer for the amounts specified in Section 3.7 of the Glendale Galleria Note
A Intercreditor Agreement pursuant to Section 3.05(a)(xviii) hereof.
SECTION 4.04. Allocation of Realized Losses and Additional Trust
Fund Expenses.
(a) On each Distribution Date, following all distributions to be
made on such date pursuant to Section 4.01, the Certificate Administrator shall
allocate to the respective Classes of Sequential Pay Certificates (exclusive of
the Class A-3FL and the Class A-4FC Certificates), the Class A-3FL REMIC II
Regular Interest and the Class A-4FC REMIC II Regular Interest the aggregate of
all Realized Losses and Additional Trust Fund Expenses that were incurred at any
time following the Cut-off Date through the end of the related Collection Period
and in any event that were not previously allocated pursuant to this Section
4.04(a) on any prior Distribution Date, but only to the extent that (i) the
aggregate Certificate Principal Balance of the Sequential Pay Certificates
(exclusive of the Class A-3FL and the Class A-4FC Certificates), the Class A-3FL
REMIC II Regular Interest and the Class A-4FC REMIC II Regular Interest as of
such Distribution Date (after taking into account all of the distributions made
on such Distribution Date pursuant to Section 4.01), exceeds (ii) the aggregate
Stated Principal Balance of, and any Unliquidated Advances with respect to, the
Mortgage Pool that will be outstanding immediately following such Distribution
Date as follows: first, sequentially, to the Class Q, Class P, Class N, Class M,
Class L, Class K, Class J, Class H, Class G, Class F, Class E, Class D, Class C,
Class B, Class AJ and Class AM Certificates, in that order, in each case until
the remaining Class Principal Balance thereof has been reduced to zero; and
then, pro rata (based on remaining Class Principal Balances) to the Class A-1,
Class A-2, Class A-3, Class A-1A, Class A-SB and Class A-4 Certificates, the
Class A-3FL REMIC II Regular Interest and the Class A-4FC REMIC II Regular
Interest until the respective Class Principal Balances thereof are reduced to
zero. Any allocation of Realized Losses and Additional Trust Fund Expenses to a
Class of Sequential Pay Certificates (exclusive of the Class A-3FL and the Class
A-4FC Certificates), the Class A-3FL REMIC II Regular Interest or the Class
A-4FC REMIC II Regular Interest shall be made by reducing the Class Principal
Balance thereof by the amount so allocated. Any Realized Losses and Additional
Trust Fund Expenses allocated to the Class A-3FL REMIC II Regular Interest or
the Class A-4FC REMIC II Regular Interest shall, in turn, be deemed allocated to
the Class A-3FL Certificates or the Class A-4FC Certificates, as applicable. All
Realized Losses and Additional Trust Fund Expenses, if any, allocated to a Class
of Sequential Pay Certificates, shall be allocated among the respective
Certificates of such Class in proportion to the Percentage Interests evidenced
thereby. All Realized Losses and Additional Trust Fund Expenses, if any, that
have not been allocated to the Sequential Pay Certificates (exclusive of the
Class A-3FL and the Class A-4FC Certificates), the Class A-3FL REMIC II Regular
Interest and/or the Class A-4FC REMIC II Regular Interest as of the Distribution
Date on which the aggregate Certificate Principal Balance of the Sequential Pay
Certificates (exclusive of the Class A-3FL and the Class A-4FC Certificates),
the Class A-3FL REMIC II Regular Interest and the Class A-4FC REMIC II Regular
Interest has been reduced to zero, shall be deemed allocated to the Residual
Certificates.
If and to the extent any Nonrecoverable Advances (and/or interest
thereon) that were reimbursed from principal collections on the Mortgage Pool
and previously resulted in a reduction of the Principal Distribution Amount are
subsequently recovered on the related Trust Mortgage Loan or Trust REO Loan,
then, on the Distribution Date immediately following the Collection Period in
which such recovery occurs, the respective Class Principal Balances of the
Classes of Sequential Pay Certificates (exclusive of the Class A-3FL and the
Class A-4FC Certificates), the Class A-3FL REMIC II Regular Interest and/or the
Class A-4FC REMIC II Regular Interest to which there has been allocated
unreimbursed Realized Losses and/or Additional Trust Fund Expenses shall be
increased, in the reverse order in which Realized Losses and Additional Trust
Fund Expenses are allocated pursuant to Section 4.04(a), by the amount of any
such recoveries that are included in the Principal Distribution Amount for the
current Distribution Date; provided, however, that, in any case, the Class
Principal Balance of any such Class of Sequential Pay Certificates (exclusive of
the Class A-3FL and the Class A-4FC Certificates), the Class A-3FL REMIC II
Regular Interest and/or the Class A-4FC REMIC II Regular Interest shall in no
event be increased by more than the amount of unreimbursed Realized Losses and
Additional Trust Fund Expenses previously allocated thereto (which unreimbursed
Realized Losses and Additional Trust Fund Expenses shall be reduced by the
amount of the increase in such Class Principal Balance); and provided, further,
that the aggregate increase in the Class Principal Balances of the respective
Classes of Sequential Pay Certificates (exclusive of the Class A-3FL and the
Class A-4FC Certificates), the Class A-3FL REMIC II Regular Interest and the
Class A-4FC REMIC II Regular Interest on any Distribution Date shall not exceed
the excess, if any, of (1) the aggregate Stated Principal Balance of, and all
Unliquidated Advances with respect to, the Mortgage Pool that will be
outstanding immediately following such Distribution Date, over (2) the aggregate
of the Class Principal Balances of the respective Classes of Sequential Pay
Certificates outstanding immediately following the distributions to be made on
such Distribution Date, but prior to any such increase in any of those Class
Principal Balances. If the Class Principal Balance of any Class of Sequential
Pay Certificates, the Class A-3FL REMIC II Regular Interest or the Class A-4FC
REMIC II Regular Interest is so increased, the amount of unreimbursed Realized
Losses and/or Additional Trust Fund Expenses considered to be allocated to such
Class shall be decreased by such amount.
(b) If the Class Principal Balance of any Class of Sequential Pay
Certificates (exclusive of the Class A-3FL Certificates and the Class A-4FC
Certificates), the Class A-3FL REMIC II Regular Interest or the Class A-4FC
REMIC II Regular Interest is reduced on any Distribution Date pursuant to the
first paragraph of Section 4.04(a), then the REMIC I Principal Balance of its
Corresponding REMIC I Regular Interest shall be deemed to have first been
reduced by the exact same amount.
To the extent the Class Principal Balance of a Class of Sequential
Pay Certificates (exclusive of the Class A-3FL Certificates and the Class A-4FC
Certificates), the Class A-3FL REMIC II Regular Interest or the Class A-4FC
REMIC II Regular Interest is increased pursuant to the second paragraph of
Section 4.04(a), the REMIC I Principal Balance of its Corresponding REMIC I
Regular Interest shall be increased by the exact same amount.
SECTION 4.05. Calculations.
The Certificate Administrator shall, provided it receives the
necessary information from the Master Servicer and the Special Servicer, be
responsible for performing all calculations necessary in connection with the
actual and deemed distributions and allocations to be made pursuant to Section
4.01, Section 5.02(d) and Article IX and the actual and deemed allocations of
Realized Losses, Additional Trust Fund Expenses and other items to be made
pursuant to Section 4.04. The Certificate Administrator shall calculate the
Available Distribution Amount for each Distribution Date and shall allocate such
amount among Certificateholders in accordance with this Agreement, and the
Certificate Administrator shall have no obligation to recompute, recalculate or
verify any information provided to it by the Special Servicer or Master
Servicer. The calculations by the Certificate Administrator of such amounts
shall, in the absence of manifest error, be presumptively deemed to be correct
for all purposes hereunder.
SECTION 4.06. Use of Agents.
The Master Servicer, the Trustee or the Certificate Administrator
each may at its own expense utilize agents or attorneys-in-fact in performing
any of its obligations under this Article IV (except the obligation to make P&I
Advances), but no such utilization shall relieve the Master Servicer, the
Trustee or the Certificate Administrator from any of such obligations or
liabilities, and the Master Servicer, the Trustee or the Certificate
Administrator, as applicable, shall remain responsible for all acts and
omissions of any such agent or attorney-in-fact (other than with respect to
limited powers-of-attorney delivered by the Trustee to the Master Servicer or
Special Servicer pursuant to Section 2.03(b) and 3.01(b), as applicable, in
which case the Trustee shall have no such responsibility)
SECTION 4.07. The Swap Agreements.
(a) The Certificate Administrator is hereby authorized and directed,
not in its individual capacity but solely as Certificate Administrator and on
behalf, and for the benefit, of the Trust, to execute and deliver each Swap
Agreement on the Closing Date and to perform obligations as described herein
with respect to each Swap Agreement. Furthermore, the Certificate Administrator
is hereby authorized and directed to, and shall, perform all obligations on the
part of the Certificate Administrator and/or the Trust under each Swap
Agreement; provided that (i) payments to be made to the Class A-3FL Swap
Counterparty pursuant to Section 4.07(d) shall be made out of amounts allocable
as interest (or, in the case of Class A-3FL Additional Fixed Swap Payments,
Yield Maintenance Charges and Prepayment Premiums) distributable on or with
respect to the Class A-3FL REMIC II Regular Interest, (ii) payments to be made
to the Class A-4FC Swap Counterparty pursuant to Section 4.07(d) shall be made
out of amounts allocable as interest (or, in the case of Class A-4FC Additional
Fixed Swap Payments, Yield Maintenance Charges and Prepayment Premiums)
distributable on or with respect to the Class A-4FC REMIC II Regular Interest
and (iii) any termination payment owing to a Swap Counterparty shall be payable
solely out of any upfront payment made by a replacement swap counterparty with
respect thereto in connection with entering into a replacement interest rate
swap agreement with the Trust, and the Certificate Administrator shall not be
responsible for using its own funds in making such payments. Upon the
Certificate Administrator entering into the Swap Agreements on behalf of the
Trust, the Trust shall be bound by the terms and conditions of the Swap
Agreements.
(b) Notwithstanding anything to the contrary in this Agreement, the
Class A-3FL Depositor's Retained Amount shall not be a part of the Class A-3FL
Grantor Trust or the Trust Fund, but instead shall belong to the Depositor (or
its affiliate) and the Certificate Administrator, on behalf of the Trust, hereby
assigns to the Depositor (or its designated affiliate) the Trust's entire right,
title and interest in and to the Class A-3FL Depositor's Retained Amount.
Notwithstanding anything to the contrary in this Agreement, the Class A-4FC
Depositor's Retained Amount shall not be a part of the Class A-4FC Grantor Trust
or the Trust Fund, but instead shall belong to the Depositor (or its affiliate)
and the Certificate Administrator, on behalf of the Trust, hereby assigns to the
Depositor (or its designated affiliate) the Trust's entire right, title and
interest in and to the Class A-4FL Depositor's Retained Amount.
(c) The Certificate Administrator shall act as "calculation agent"
under each Swap Agreement and shall timely perform all duties associated
therewith.
In addition, by 5:00 p.m. (New York time) on the Business Day prior
to (or, in the case of item (i) below, no later than the Determination Date
relating to) each Distribution Date, based on (in the case of items (ii) and
(iii) below) the CMSA Loan Periodic Update File for the related Collection
Period provided by the Master Servicer pursuant to Section 3.12, the Certificate
Administrator shall notify the Class A-3FL Swap Counterparty, in writing of (i)
the Class Principal Balance of the Class A-3FL Certificates immediately prior to
the related Distribution Date, (ii) the amount of any Prepayment Premiums and
Yield Maintenance Charges distributable with respect to the Class A-3FL REMIC II
Regular Interest for the related Distribution Date, and (iii) the amount of
interest distributable with respect to the Class A-3FL REMIC II Regular Interest
pursuant to Section 4.01(a) for such Distribution Date.
In addition, by 5:00 p.m. (New York time) on the Business Day prior
to (or, in the case of item (i) below, no later than the Determination Date
relating to) each Distribution Date, based on (in the case of items (ii) and
(iii) below) the CMSA Loan Periodic Update File for the related Collection
Period provided by the Master Servicer pursuant to Section 3.12, the Certificate
Administrator shall notify the Class A-4FC Swap Counterparty, in writing of (i)
the Class Principal Balance of the Class A-4FC Certificates immediately prior to
the related Distribution Date, (ii) the amount of any Prepayment Premiums and
Yield Maintenance Charges distributable with respect to the Class A-4FC REMIC II
Regular Interest for the related Distribution Date, and (iii) the amount of
interest distributable with respect to the Class A-4FC REMIC II Regular Interest
pursuant to Section 4.01(a) for such Distribution Date.
(d) On each Distribution Date, following all deposits to the
Floating Rate Account on or prior to that date pursuant to Section 3.04(c), the
Certificate Administrator shall (i) remit the Class A-3FL Net Fixed Swap
Payment, the Class A-3FL Additional Fixed Swap Payment and the Class A-3FL Fixed
Payer Shortfall Reimbursement Payment, in each case if any, to the Class A-3FL
Swap Counterparty out of amounts on deposit in the Floating Rate Account that
represent distributions of Distributable Certificate Interest (or, in the case
of the Class A-3FL Additional Fixed Swap Payments, Yield Maintenance Charges and
Prepayment Premiums) in respect of the Class A-3FL REMIC II Regular Interest;
and (ii) remit the Class A-4FC Net Fixed Swap Payment, the Class A-4FC
Additional Fixed Swap Payment and the Class A-4FC Fixed Payer Shortfall
Reimbursement Payment, in each case if any, to the Class A-4FC Swap Counterparty
out of amounts on deposit in the Floating Rate Account that represent
distributions of Distributable Certificate Interest (or, in the case of the
Class A-4FC Additional Fixed Swap Payments, Yield Maintenance Charges and
Prepayment Premiums) in respect of the Class A-4FC REMIC II Regular Interest;
provided that, during the continuation of a Swap Payment Default under a Swap
Agreement while the Certificate Administrator is pursuing remedies under such
Swap Agreement, or following the termination of a Swap Agreement, the
Certificate Administrator shall not make such payments to the related Swap
Counterparty. If by 3:00 p.m. New York City time on any Class A-3FL Swap Payment
Date the Certificate Administrator has not received any Class A-3FL Net Floating
Swap Payment payable by the Class A-3FL Swap Counterparty on such date, the
Certificate Administrator shall, consistent with the Class A-3FL Swap Agreement,
in order to, among other things, cause the commencement of the applicable grace
period, promptly notify the Class A-3FL Swap Counterparty that the Certificate
Administrator has not received such Class A-3FL Net Floating Swap Payment. If by
3:00 p.m. New York City time on any Class A-4FC Swap Payment Date the
Certificate Administrator has not received any Class A-4FC Net Floating Swap
Payment payable by the Class A-4FC Swap Counterparty on such date, the
Certificate Administrator shall, consistent with the Class A-4FC Swap Agreement,
in order to, among other things, cause the commencement of the applicable grace
period, promptly notify the Class A-4FC Swap Counterparty that the Certificate
Administrator has not received such Class A-4FC Net Floating Swap Payment.
(e) Subject to Section 8.02(iii), the Certificate Administrator
shall at all times enforce the Trust's rights under the Class A-3FL Swap
Agreement. In the event of a Swap Default under the Class A-3FL Swap Agreement,
the Certificate Administrator shall (i) provide notice of such Swap Default on
the date of such default to the Class A-3FL Swap Counterparty and (ii) promptly
provide written notice to the Holders of the Class A-3FL Certificates and,
subject to Section 8.02(iii), shall be required to take such actions (following
the expiration of any applicable grace period specified in the Class A-3FL Swap
Agreement), unless otherwise directed in writing by the Holders or Certificate
Owners of Class A-3FL Certificates representing at least 25% of the Class
Principal Balance of the Class A-3FL Certificates, to enforce such rights of the
Trust under the Class A-3FL Swap Agreement as may be permitted by the terms
thereof, including termination thereof, and use any Swap Termination Fees
received from the Class A-3FL Swap Counterparty to enter into a replacement
interest rate swap agreement on substantially identical terms, with a
replacement swap counterparty that would not cause a Collateralization Event (as
defined in the Class A-3FL Swap Agreement). If the costs attributable to
entering into a replacement interest rate swap agreement with respect to the
Class A-3FL Certificates would exceed the amount of any Swap Termination Fees
received from the Class A-3FL Swap Counterparty, a replacement interest rate
swap agreement with respect to the Class A-3FL Certificates shall not be entered
into and any such proceeds will instead be distributed, pro rata, to the of the
Class A-3FL Certificates on the immediately succeeding Distribution Date as part
of the Class A-3FL Interest Distribution Amount for such Distribution Date. If
any replacement swap counterparty pays any fee in connection with the execution
of any replacement interest rate swap agreement in respect of the Class A-3FL
Certificates with the Trust, the Certificate Administrator shall distribute such
fee: first, to the Class A-3FL Swap Counterparty in respect of the terminated
Class A-3FL Swap Agreement, up to the amount of any termination payment owing to
the terminated Class A-3FL Swap Counterparty under, and in connection with the
termination of, such Swap Agreement, and such fee (or applicable portion
thereof) shall be deemed to have been distributed first to the Depositor as
compensation to the Depositor under this Agreement and then from the Depositor
to the Class A-3FL Swap Counterparty in respect of the terminated Class A-3FL
Swap Agreement, and then, any remainder, to the Depositor. Any expenses, costs
and/or liabilities incurred by the Certificate Administrator in connection with
enforcing the Class A-3FL Swap Agreement shall be payable and/or reimbursable
solely out of indemnification payments made by Class A-3FL Certificateholders.
Any Class A-3FL Distribution Conversion shall become permanent
following the determination by the Certificate Administrator (in the
circumstances contemplated in the third sentence of the preceding paragraph) or
by the Holders or Certificate Owners of Class A-3FL Certificates representing at
least 25% of the Class Principal Balance of the Class A-3FL Certificates not to
enter into a replacement interest rate swap agreement and distribution of any
Swap Termination Fees paid by the Class A-3FL Swap Counterparty to the Holders
of the Class A-3FL Certificates. Any Swap Default under, or termination of, the
Class A-3FL Swap Agreement and the consequent Class A-3FL Distribution
Conversion shall not, in and of itself, constitute an Event of Default under
this Agreement.
Upon any change in the payment terms on the Class A-3FL
Certificates, including as a result of a Class A-3FL Distribution Conversion,
termination of a Class A-3FL Distribution Conversion, a Swap Default under the
Class A-3FL Swap Agreement or the cure of a Swap Default under the Class A-3FL
Swap Agreement, the Certificate Administrator shall promptly notify the
Depository of the change in payment terms.
(f) Subject to Section 8.02(iii), the Certificate Administrator
shall at all times enforce the Trust's rights under the Class A-4FC Swap
Agreement. In the event of a Swap Default under the Class A-4FC Swap Agreement,
the Certificate Administrator shall (i) provide notice of such Swap Default on
the date of such default to the Class A-4FC Swap Counterparty and (ii) promptly
provide written notice to the Holders of the Class A-4FC Certificates and,
subject to Section 8.02(iii), shall be required to take such actions (following
the expiration of any applicable grace period specified in the Class A-4FC Swap
Agreement), unless otherwise directed in writing by the Holders or Certificate
Owners of Class A-4FC Certificates representing at least 25% of the Class
Principal Balance of the Class A-4FC Certificates, to enforce such rights of the
Trust under the Class A-4FC Swap Agreement as may be permitted by the terms
thereof, including termination thereof, and use any Swap Termination Fees
received from the Class A-4FC Swap Counterparty to enter into a replacement
interest rate swap agreement on substantially identical terms, with a
replacement swap counterparty that would not cause a Collateralization Event (as
defined in the Class A-4FC Swap Agreement). If the costs attributable to
entering into a replacement interest rate swap agreement with respect to the
Class A-4FC Certificates would exceed the amount of any Swap Termination Fees
received from the Class A-4FC Swap Counterparty, a replacement interest rate
swap agreement with respect to the Class A-4FC Certificates shall not be entered
into and any such proceeds will instead be distributed, pro rata, to the Holders
of the Class A-4FC Certificates on the immediately succeeding Distribution Date
as part of the Class A-4FC Interest Distribution Amount for such Distribution
Date. If any replacement swap counterparty pays any fee in connection with the
execution of any replacement interest rate swap agreement in respect of the
Class A-4FC Certificates with the Trust, the Certificate Administrator shall
distribute such fee: first, to the Class A-4FC Swap Counterparty in respect of
the terminated Class A-4FC Swap Agreement, up to the amount of any termination
payment owing to the terminated Class A-4FC Swap Counterparty under, and in
connection with the termination of, such Swap Agreement, and such fee (or
applicable portion thereof) shall be deemed to have been distributed first to
the Depositor as compensation to the Depositor under this Agreement and then
from the Depositor to the Class A-4FC Swap Counterparty in respect of the
terminated Class A-4FC Swap Agreement, and then, any remainder, to the
Depositor. Any expenses, costs and/or liabilities incurred by the Certificate
Administrator in connection with enforcing the Class A-4FC Swap Agreement shall
be payable and/or reimbursable solely out of indemnification payments made by
Class A-4FC Certificateholders.
Any Class A-4FC Distribution Conversion shall become permanent
following the determination by the Certificate Administrator (in the
circumstances contemplated in the third sentence of the preceding paragraph) or
by the Holders or Certificate Owners of Class A-4FC Certificates representing at
least 25% of the Class Principal Balance of the Class A-4FC Certificates not to
enter into a replacement interest rate swap agreement and distribution of any
Swap Termination Fees paid by the Class A-4FC Swap Counterparty to the Holders
of the Class A-4FC Certificates. Any Swap Default under, or termination of, the
Class A-4FC Swap Agreement and the consequent Class A-4FC Distribution
Conversion shall not, in and of itself, constitute an Event of Default under
this Agreement.
Upon any change in the payment terms on the Class A-4FC
Certificates, including as a result of a Class A-4FC Distribution Conversion,
termination of a Class A-4FC Distribution Conversion, a Swap Default under the
Class A-4FC Swap Agreement or the cure of a Swap Default under the Class A-4FC
Swap Agreement, the Certificate Administrator shall promptly notify the
Depository of the change in payment terms.
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates will be substantially in the respective forms
attached hereto as Exhibits X-0, X-0, X-0, X-0, X-0, X-0, A-7 and A-8, as
applicable; provided that any of the Certificates may be issued with appropriate
insertions, omissions, substitutions and variations, and may have imprinted or
otherwise reproduced thereon such legend or legends, not inconsistent with the
provisions of this Agreement, as may be required to comply with any law or with
rules or regulations pursuant thereto, or with the rules of any securities
market in which the Certificates are admitted to trading, or to conform to
general usage. The Certificates will be issuable in registered form only;
provided, however, that in accordance with Section 5.03 beneficial ownership
interests in the Sequential Pay Certificates and the Class X Certificates shall
initially be held and transferred through the book-entry facilities of the
Depository. The Sequential Pay Certificates and the Class X Certificates will be
issuable only in denominations corresponding to initial Certificate Principal
Balances or initial Certificate Notional Amounts, as the case may be, as of the
Closing Date of not less than $25,000 in the case of the Registered Certificates
and not less than $100,000 in the case of Non-Registered Certificates (other
than the Residual Certificates and the Class Z Certificates), and in each such
case in integral multiples of $1 in excess thereof. The Class R-I and Class R-II
Certificates will be issuable in minimum Percentage Interests of 10%. The Class
Z Certificates shall have no minimum denomination and shall be represented by a
single Definitive Certificate.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee by the Certificate Registrar hereunder by an
authorized signatory. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized officers or signatories of the
Certificate Registrar shall be entitled to all benefits under this Agreement,
subject to the following sentence, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Certificates or did not hold such offices at the date of such
Certificates. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, however, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein executed by the Authenticating Agent by manual signature, and such
certificate of authentication upon any Certificate shall be conclusive evidence,
and the only evidence, that such Certificate has been duly authenticated and
delivered hereunder. All Certificates shall be dated the date of their
authentication.
SECTION 5.02. Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar may
prescribe, the Certificate Registrar (located as of the Closing Date at LaSalle
Bank National Association, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, XX
00000, Attention: Global Securities and Trust Services Group-MCMT-2005-LC1)
shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. The Certificate Administrator is
hereby initially appointed (and hereby agrees to act in accordance with the
terms hereof) as Certificate Registrar for the purpose of registering
Certificates and transfers and exchanges of Certificates as herein provided. The
Certificate Registrar may appoint, by a written instrument delivered to the
Depositor, the Master Servicer, the Special Servicer, the Trustee and (if the
Certificate Administrator is not the Certificate Registrar) the Certificate
Administrator or 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
the Certificate Administrator resigns or is removed in accordance with the terms
hereof, the successor certificate administrator shall immediately succeed to its
duties as Certificate Registrar. The Depositor, the Certificate Administrator
(if it is no longer the Certificate Registrar), 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.
Upon written request of any Certificateholder made for purposes of
communicating with other Certificateholders with respect to their rights under
this Agreement, the Certificate Registrar shall promptly furnish such
Certificateholder with a list of the other Certificateholders of record
identified in the Certificate Register at the time of the request.
(b) No Transfer of any Non-Registered Certificate or interest
therein shall be made unless that Transfer is exempt from the registration
and/or qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If a Transfer of any Definitive Non-Registered Certificate is to be
made without registration under the Securities Act (other than in connection
with the initial issuance of the Non-Registered Certificates or a Transfer of
such Certificate by the Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated or any of their respective Affiliates or, in the case of a Global
Certificate for any Class of Book-Entry Non-Registered Certificates, a Transfer
thereof to a successor Depository or to the applicable Certificate Owner(s) in
accordance with Section 5.03), then the Certificate Registrar shall refuse to
register such Transfer unless it receives (and, upon receipt, may conclusively
rely upon) either: (i) a certificate from the Certificateholder desiring to
effect such Transfer substantially in the form attached hereto as Exhibit E-1
and a certificate from such Certificateholder's prospective Transferee
substantially in the form attached hereto either as Exhibit E-2A or, except in
the case of the Class R-I, Class R-II or Class Z Certificates, as Exhibit E-2B;
or (ii) an Opinion of Counsel satisfactory to the Certificate Administrator to
the effect that the prospective Transferee is a Qualified Institutional Buyer
or, except in the case of the Class R-I, Class R-II or Class Z Certificates, an
Institutional Accredited Investor, and such Transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the REMIC Administrator, the Trustee, the Certificate Administrator or
the Certificate Registrar in their respective capacities as such), together with
the written certification(s) as to the facts surrounding such Transfer from the
Certificateholder desiring to effect such Transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based.
No beneficial interest in the Rule 144A Global Certificate for any
Class of Book-Entry Non-Registered Certificates may be held by any Person that
is not a Qualified Institutional Buyer. If a Transfer of any interest in the
Rule 144A Global Certificate for any Class of Book-Entry Non-Registered
Certificates is to be made without registration under the Securities Act (other
than in connection with the initial issuance of the Book-Entry Non-Registered
Certificates or a Transfer of any interest therein by the Depositor, Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated or any of their respective
Affiliates), then the Certificate Owner desiring to effect such Transfer shall
be required to obtain either (i) a certificate from such Certificate Owner's
prospective Transferee substantially in the form attached hereto as Exhibit
E-2C, or (ii) an Opinion of Counsel to the effect that the prospective
Transferee is a Qualified Institutional Buyer and such Transfer may be made
without registration under the Securities Act. Except as provided in the
following paragraph, no interest in the Rule 144A Global Certificate for any
Class of Book-Entry Non-Registered Certificates shall be transferred to any
Person who takes delivery other than in the form of an interest in such Rule
144A Global Certificate. If any Transferee of an interest in the Rule 144A
Global Certificate for any Class of Book-Entry Non-Registered Certificates does
not, in connection with the subject Transfer, deliver to the Transferor the
Opinion of Counsel or the certification described in the second preceding
sentence, then such Transferee shall be deemed to have represented and warranted
that all the certifications set forth in Exhibit E-2C hereto are, with respect
to the subject Transfer, true and correct.
Notwithstanding the preceding paragraph, any interest in the Rule
144A Global Certificate for a Class of Book-Entry Non-Registered Certificates
may be transferred to any Non-United States Securities Person who takes delivery
in the form of a beneficial interest in the Regulation S Global Certificate for
such Class of Certificates, provided that the Certificate Owner desiring to
effect such Transfer (i) complies with the requirements for Transfers of
interests in such Regulation S Global Certificate set forth in the following
paragraph and (ii) delivers or causes to be delivered to the Certificate
Registrar and the Certificate Administrator (A) a certificate from such
Certificate Owner confirming its ownership of the beneficial interests in the
subject Class of Book-Entry Non-Registered Certificates to be transferred, (B) a
copy of the certificate to be obtained by such Certificate Owner from its
prospective Transferee in accordance with the second sentence of the following
paragraph and (C) such written orders and instructions as are required under the
applicable procedures of the Depository, Clearstream and Euroclear to direct the
Certificate Administrator, as transfer agent for the Depository, to approve the
debit of the account of a Depository Participant by a denomination of interests
in such Rule 144A Global Certificate, and approve the credit of the account of a
Depository Participant by a denomination of interests in such Regulation S
Global Certificate, that is equal to the denomination of beneficial interests in
the subject Class of Book-Entry Non-Registered Certificates to be transferred.
Upon delivery to the Certificate Registrar and the Certificate Administrator of
such certifications and such orders and instructions, the Certificate
Administrator, subject to and in accordance with the applicable procedures of
the Depository, shall reduce the denomination of the Rule 144A Global
Certificate in respect of the subject Class of Book-Entry Non-Registered
Certificates, and increase the denomination of the Regulation S Global
Certificate for such Class of Certificates, by the denomination of the
beneficial interest in such Class of Certificates specified in such orders and
instructions.
No beneficial interest in the Regulation S Global Certificate for
any Class of Book-Entry Non-Registered Certificates may be held by any Person
that is a United States Securities Person. Any Certificate Owner desiring to
effect any Transfer of a beneficial interest in the Regulation S Global
Certificate for any Class of Book-Entry Non-Registered Certificates shall be
required to obtain from such Certificate Owner's prospective Transferee a
certificate substantially in the form set forth in Exhibit E-2D hereto to the
effect that such Transferee is not a United States Securities Person. If any
Transferee of an interest in the Regulation S Global Certificate for any Class
of Book-Entry Non-Registered Certificates does not, in connection with the
subject Transfer, deliver to the Transferor the certification described in the
preceding sentence, then such Transferee shall be deemed to have represented and
warranted that all the certifications set forth in Exhibit E-2D hereto are, with
respect to the subject Transfer, true and correct.
Notwithstanding the preceding paragraph, any interest in the
Regulation S Global Certificate for a Class of Book-Entry Non-Registered
Certificates may be transferred to any Qualified Institutional Buyer that takes
delivery in the form of a beneficial interest in the Rule 144A Global
Certificate for such Class of Certificates, provided that the Certificate Owner
desiring to effect such transfer (i) complies with the requirements for
Transfers of interests in such Rule 144A Global Certificate set forth in the
third paragraph of this Section 5.02(b) and (ii) delivers or causes to be
delivered to the Certificate Registrar and the Certificate Administrator (A) a
certificate from such Certificate Owner confirming its ownership of the
beneficial interests in the subject Class of Book-Entry Non-Registered
Certificates to be transferred, (B) a copy of the certificate or Opinion of
Counsel to be obtained by such Certificate Owner from its prospective Transferee
in accordance with the second sentence of the third paragraph of this Section
5.02(b) and (C) such written orders and instructions as are required under the
applicable procedures of the Depository, Clearstream and Euroclear to direct the
Certificate Administrator to debit the account of a Depository Participant by a
denomination of interests in such Regulation S Global Certificate, and credit
the account of a Depository Participant by a denomination of interests in such
Rule 144A Global Certificate, that is equal to the denomination of beneficial
interests in the subject Class of Book-Entry Non-Registered Certificates to be
transferred. Upon delivery to the Certificate Registrar and the Certificate
Administrator of such certification(s) and/or Opinion of Counsel and such orders
and instructions, the Certificate Administrator, subject to and in accordance
with the applicable procedures of the Depository, shall reduce the denomination
of the Regulation S Global Certificate in respect of the subject Class of
Book-Entry Non-Registered Certificates, and increase the denomination of the
Rule 144A Global Certificate for such Class of Certificates, by the denomination
of the beneficial interest in such Class of Certificates specified in such
orders and instructions.
Also notwithstanding the foregoing, any interest in a Global
Certificate with respect to any Class of Book-Entry Non-Registered Certificates
may be transferred by any Certificate Owner holding such interest to any
Institutional Accredited Investor (other than a Qualified Institutional Buyer)
that takes delivery in the form of a Definitive Certificate of the same Class as
such Global Certificate upon delivery to the Certificate Registrar and the
Certificate Administrator of (i) such certifications and/or opinions as are
contemplated by the second paragraph of this Section 5.02(b) and (ii) such
written orders and instructions as are required under the applicable procedures
of the Depository to direct the Certificate Administrator to debit the account
of a Depository Participant by the denomination of the transferred interests in
such Global Certificate. Upon delivery to the Certificate Registrar and the
Certificate Administrator of the certifications and/or opinions contemplated by
the second paragraph of this Section 5.02(b), the Certificate Administrator,
subject to and in accordance with the applicable procedures of the Depository,
shall reduce the denomination of the subject Global Certificate by the
denomination of the transferred interests in such Global Certificate, and shall
cause a Definitive Certificate of the same Class as such Global Certificate, and
in a denomination equal to the reduction in the denomination of such Global
Certificate, to be executed, authenticated and delivered in accordance with this
Agreement to the applicable Transferee.
None of the Depositor, the Certificate Administrator or the
Certificate Registrar is obligated to register or qualify any Class of
Non-Registered Certificates under the Securities Act or any other securities law
or to take any action not otherwise required under this Agreement to permit the
Transfer of any Non-Registered Certificate or interest therein without
registration or qualification. Any Certificateholder or Certificate Owner
desiring to effect a Transfer of any Non-Registered Certificate or interest
therein shall, and does hereby agree to, indemnify the Depositor, the Initial
Purchasers, the Trustee, the Certificate Administrator, the Master Servicer, the
Special Servicer, the REMIC Administrator and the Certificate Registrar against
any liability that may result if such Transfer is not exempt from the
registration and/or qualification requirements of the Securities Act and any
applicable state securities laws or is not made in accordance with such federal
and state laws.
No Transfer of a Certificate or any interest therein shall be made
(i) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or the Code (each, a "Plan"), or (ii) to any Person who is
directly or indirectly purchasing such Certificate or interest therein on behalf
of, as named fiduciary of, as trustee of, or with assets of a Plan, if the
purchase and holding of such Certificate or interest therein by the prospective
Transferee would result in a violation of Section 406 or 407 of ERISA or Section
4975 of the Code or would result in the imposition of an excise tax under
Section 4975 of the Code. The foregoing sentence notwithstanding, no Transfer of
the Class Z, Class R-I and R-II Certificates shall be made to a Plan or to a
Person who is directly or indirectly purchasing such Certificate or interest
therein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan. Except in connection with the initial issuance of the Non-Registered
Certificates or any Transfer of a Non-Registered Certificate or any interest
therein by the Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated or
any of their respective Affiliates or, in the case of a Global Certificate for
any Class of Book-Entry Non-Registered Certificates, any Transfer thereof to a
successor Depository or to the applicable Certificate Owner(s) in accordance
with Section 5.03, the Certificate Registrar shall refuse to register the
Transfer of a Definitive Non-Registered Certificate unless it has received from
the prospective Transferee, and any Certificate Owner transferring an interest
in a Global Certificate for any Class of Book-Entry Non-Registered Certificates
shall be required to obtain from its prospective Transferee, one of the
following: (i) a certification to the effect that such prospective Transferee is
not a Plan and is not directly or indirectly purchasing such Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan; or (ii) alternatively, except in the case of the Class Z,
Class R-I and Class R-II Certificates, a certification to the effect that the
purchase and holding of such Certificate or interest therein by such prospective
Transferee is exempt from the prohibited transaction provisions of Sections 406
and 407 of ERISA and the excise taxes imposed on such prohibited transactions by
Section 4975 of the Code, by reason of Sections I and III of Prohibited
Transaction Class Exemption 95-60; or (iii) alternatively, but only in the case
of a Non-Registered Certificate that is an Investment Grade Certificate that is
being acquired by or on behalf of a Plan in reliance on the Exemption, a
certification to the effect that such Plan (X) is an accredited investor as
defined in Rule 501(a)(1) of Regulation D of the Securities Act, (Y) is not
sponsored (within the meaning of Section 3(16)(B) of ERISA) by the Trustee, the
Certificate Administrator, the Depositor, any Mortgage Loan Seller, the Master
Servicer, the Special Servicer, any Sub-Servicer, any Person responsible for
servicing the Glendale Galleria Trust Mortgage Loan or related Glendale Galleria
REO Property, any Exemption-Favored Party, a Swap Counterparty or any Mortgagor
with respect to Trust Mortgage Loans constituting more than 5% of the aggregate
unamortized principal balance of all the Trust Mortgage Loans determined as of
the Closing Date, or by any Affiliate of such Person, and (Z) agrees that it
will obtain from each of its Transferees that is a Plan a written representation
that such Transferee satisfies the requirements of the immediately preceding
clauses (iii)(X) and (iii)(Y), together with a written agreement that such
Transferee will obtain from each of its Transferees that is a Plan a similar
written representation regarding satisfaction of the requirements of the
immediately preceding clauses (iii)(X) and (iii)(Y); or (iv) alternatively,
except in the case of the Class R-I and Class R-II Certificates, a certification
of facts and an Opinion of Counsel which otherwise establish to the reasonable
satisfaction of the Certificate Administrator or such Certificate Owner, as the
case may be, that such Transfer will not result in a violation of Section 406 or
407 of ERISA or Section 4975 of the Code or result in the imposition of an
excise tax under Section 4975 of the Code. It is hereby acknowledged that the
forms of certification attached hereto as Exhibit F-1 (in the case of Definitive
Non-Registered Certificates) and Exhibit F-2 (in the case of ownership interests
in Book-Entry Non-Registered Certificates) are acceptable for purposes of the
preceding sentence. If any Transferee of a Certificate (including a Registered
Certificate) or any interest therein does not, in connection with the subject
Transfer, deliver to the Certificate Registrar (in the case of a Definitive
Certificate) or the Transferor (in the case of ownership interests in a
Book-Entry Certificate) any certification and/or Opinion of Counsel contemplated
by the second preceding sentence, then such Transferee shall be deemed to have
represented and warranted that either: (i) such Transferee is not a Plan and is
not directly or indirectly purchasing such Certificate or interest therein on
behalf of, as named fiduciary of, as trustee of, or with assets of a Plan; or
(ii) the purchase and holding of such Certificate or interest therein by such
Transferee is exempt from the prohibited transaction provisions of Sections 406
and 407 of ERISA and the excise taxes imposed on such prohibited transactions by
Section 4975 of the Code. As long as the Class A-3FL Swap Agreement or the Class
A-4FC Swap Agreement, as applicable, is in effect, each beneficial owner of a
Class A-3FL Certificate or Class A-4FC Certificate, as applicable, or any
interest therein, shall be deemed to have represented that either (i) it is not
a Plan or (ii) the acquisition and holding of such Certificate are eligible for
the exemptive relief available under at least one of the Investor Based
Exemptions.
(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 Certificate Administrator under clause
(ii)(A) below to deliver payments to a Person other than such Person and to have
irrevocably authorized the Certificate Administrator under clause (ii)(B) below
to negotiate the terms of any mandatory disposition and to execute all
instruments of Transfer and to do all other things necessary in connection with
any such disposition. The rights of each Person acquiring any Ownership Interest
in a Residual Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall
promptly notify the REMIC Administrator and the Certificate
Administrator of any change or impending change in its status
as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Certificate Registrar
shall require delivery to it, and shall not register the
Transfer of any Residual Certificate until its receipt, of an
affidavit and agreement substantially in the form attached
hereto as Exhibit G-1 (a "Transfer Affidavit and Agreement"),
from the proposed Transferee, representing and warranting,
among other things, that such Transferee is a Permitted
Transferee, that it is not acquiring its Ownership Interest in
the Residual Certificate that is the subject of the proposed
Transfer as a nominee, trustee or agent for any Person that is
not a Permitted Transferee, that for so long as it retains its
Ownership Interest in a Residual Certificate, it will endeavor
to remain a Permitted Transferee and that it has reviewed the
provisions of this Section 5.02(d) and agrees to be bound by
them.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if
a Responsible Officer of either the Certificate Administrator
or the Certificate Registrar has actual knowledge that the
proposed Transferee is not a Permitted Transferee, no Transfer
of an Ownership Interest in a Residual Certificate to such
proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (1) to require a Transfer
Affidavit and Agreement from any prospective Transferee to
whom such Person attempts to Transfer its Ownership Interest
in such Residual Certificate and (2) not to Transfer its
Ownership Interest in such Residual Certificate unless it
provides to the Certificate Registrar a certificate
substantially in the form attached hereto as Exhibit G-2
stating that, among other things, it has no actual knowledge
that such prospective Transferee is not a Permitted
Transferee.
(E) Each Person holding or acquiring an Ownership Interest in a
Residual Certificate, by purchasing such Ownership Interest,
agrees to give the REMIC Administrator and the Trustee written
notice that it is a "pass-through interest holder" within the
meaning of temporary Treasury Regulations Section
1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership
Interest in a Residual Certificate, if it is, or is holding an
Ownership Interest in a Residual Certificate on behalf of, a
"pass-through interest holder."
(ii) (A) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this Section
5.02(d), then the last preceding Holder of such Residual Certificate that
was in compliance with the provisions of this Section 5.02(d) shall be
restored, to the extent permitted by law, to all rights as Holder thereof
retroactive to the date of registration of such Transfer of such Residual
Certificate. None of the Depositor, the Trustee, Certificate Administrator
or the Certificate Registrar shall be under any liability to any Person
for any registration of Transfer of a Residual Certificate that is in fact
not permitted by this Section 5.02(d) or for making any payments due on
such Certificate to the Holder thereof or for taking any other action with
respect to such Holder under the provisions of this Agreement.
(B) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the restrictions in this Section
5.02(d), then, to the extent that the retroactive restoration of the
rights of the preceding Holder of such Residual Certificate as described
in clause (ii)(A) above shall be invalid, illegal or unenforceable, the
Certificate Administrator shall have the right but not the obligation, to
cause the Transfer of such Residual Certificate to a Permitted Transferee
selected by the Certificate Administrator on such terms as the Certificate
Administrator may choose, and the Certificate Administrator shall not be
liable to any Person having an Ownership Interest in such Residual
Certificate as a result of the Trustee's exercise of such discretion. Such
purported Transferee shall promptly endorse and deliver such Residual
Certificate in accordance with the instructions of the Certificate
Administrator. Such Permitted Transferee may be the Certificate
Administrator itself or any Affiliate of the Certificate Administrator.
(iii) The REMIC Administrator shall make available to the Internal
Revenue Service and to those Persons specified by the REMIC Provisions all
information furnished to it by the other parties hereto that is necessary
to compute any tax imposed (A) as a result of the Transfer of an Ownership
Interest in a Residual Certificate to any Person who is a Disqualified
Organization, including the information described in Treasury Regulations
Sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess
inclusions" of such Residual Certificate and (B) as a result of any
regulated investment company, real estate investment trust, common trust
fund, partnership, trust, estate or organization described in Section 1381
of the Code that holds an Ownership Interest in a Residual Certificate
having as among its record holders at any time any Person which is a
Disqualified Organization, and each of the other parties hereto shall
furnish to the REMIC Administrator all information in its possession
necessary for the REMIC Administrator to discharge such obligation. The
Person holding such Ownership Interest shall be responsible for the
reasonable compensation of the REMIC Administrator for providing such
information thereto pursuant to this subsection (d)(iii) and Section
10.01(g)(i).
(iv) The provisions of this Section 5.02(d) set forth prior to this
clause (iv) may be modified, added to or eliminated, provided that there
shall have been delivered to the Certificate Administrator and the REMIC
Administrator the following:
(A) written confirmation from each Rating Agency to the effect
that the modification of, addition to or elimination of such
provisions will not cause an Adverse Rating Event; and
(B) an Opinion of Counsel, in form and substance satisfactory to
the Certificate Administrator and the REMIC Administrator,
obtained at the expense of the party seeking such modification
of, addition to or elimination of such provisions (but in no
event at the expense of the Certificate Administrator, the
REMIC Administrator or the Trust Fund), to the effect that
doing so will not (1) cause REMIC I or REMIC II to cease to
qualify as a REMIC or be subject to an entity-level tax caused
by the Transfer of any Residual Certificate to a Person which
is not a Permitted Transferee, or (2) cause a Person other
than the prospective Transferee to be subject to a
REMIC-related tax caused by the Transfer of a Residual
Certificate to a Person that is not a Permitted Transferee.
(d) If a Person is acquiring any Non-Registered Certificate or
interest therein as a fiduciary or agent for one or more accounts, such Person
shall be required to deliver to the Certificate Registrar (or, in the case of an
interest in a Book-Entry Non-Registered Certificate, to the Certificate Owner
that is transferring such interest) a certification to the effect that, and such
other evidence as may be reasonably required by the Certificate Administrator
(or such Certificate Owner) to confirm that, it has (i) sole investment
discretion with respect to each such account and (ii) full power to make the
applicable foregoing acknowledgments, representations, warranties,
certifications and agreements with respect to each such account as set forth in
subsections (b), (c) and/or (d), as appropriate, of this Section 5.02.
(e) Subject to the preceding provisions of this Section 5.02, upon
surrender for registration of transfer of any Certificate at the offices of the
Certificate Registrar maintained for such purpose, the Certificate Registrar
shall execute and the Authenticating Agent shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Certificates of the same Class evidencing a like aggregate Percentage Interest
in such Class.
(f) At the option of any Holder, its Certificates may be exchanged
for other Certificates of authorized denominations of the same Class evidencing
a like aggregate Percentage Interest in such Class upon surrender of the
Certificates to be exchanged at the offices of the Certificate Registrar
maintained for such purpose. Whenever any Certificates are so surrendered for
exchange, the Certificate Registrar shall execute and the Authenticating Agent
shall authenticate and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Certificate Registrar duly executed by, the Holder thereof
or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange
of Certificates, but the Certificate Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall dispose of such canceled Certificates in accordance with its standard
procedures.
(j) Upon request, the Certificate Registrar shall provide to the
Master Servicer, the Special Servicer and the Depositor notice of each transfer
of a Certificate and shall provide to each such Person with an updated copy of
the Certificate Register.
SECTION 5.03. Book-Entry Certificates.
(a) Each Class of Regular Certificates, the Class A-3FL Certificates
and the Class A-4FC Certificates shall initially be issued as one or more
Certificates registered in the name of the Depository or its nominee and, except
as provided in Section 5.03(c) and in the fifth paragraph of Section 5.02(b), a
Transfer of such Certificates may not be registered by the Certificate Registrar
unless such transfer is to a successor Depository that agrees to hold such
Certificates for the respective Certificate Owners with Ownership Interests
therein. Such Certificate Owners shall hold and Transfer their respective
Ownership Interests in and to such Certificates through the book-entry
facilities of the Depository and, except as provided in Section 5.03(c) and in
the fifth paragraph of Section 5.02(b), shall not be entitled to definitive,
fully registered Certificates ("Definitive Certificates") in respect of such
Ownership Interests. The Class X, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class P and Class Q Certificates initially
sold to Qualified Institutional Buyers in reliance on Rule 144A or in reliance
on another exemption from the registration requirements of the Securities Act
shall, in the case of each such Class, be represented by the Rule 144A Global
Certificate for such Class, which shall be deposited with the Certificate
Administrator as custodian for the Depository and registered in the name of Cede
& Co. as nominee of the Depository. The Class X, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P and Class
Q Certificates initially sold in offshore transactions in reliance on Regulation
S shall, in the case of each such Class, be represented by the Regulation S
Global Certificate for such Class, which shall be deposited with the Certificate
Administrator as custodian for the Depository and registered in the name of Cede
& Co. as nominee of the Depository. All Transfers by Certificate Owners of their
respective Ownership Interests in the Book-Entry Certificates shall be made in
accordance with the procedures established by the Depository Participant or
brokerage firm representing each such Certificate Owner. Each Depository
Participant shall only transfer the Ownership Interests in the Book-Entry
Certificates of Certificate Owners it represents or of brokerage firms for which
it acts as agent in accordance with the Depository's normal procedures. Each
Certificate Owner is deemed, by virtue of its acquisition of an Ownership
Interest in the applicable Class of Book-Entry Certificates, to agree to comply
with the transfer requirements provided for in Section 5.02.
(b) The Trustee, the Master Servicer, the Special Servicer, the
Depositor and the Certificate Registrar may for all purposes, including the
making of payments due on the Book-Entry Certificates, deal with the Depository
as the authorized representative of the Certificate Owners with respect to such
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the Book-Entry
Certificates shall be limited to those established by law and agreements between
such Certificate Owners and the Depository Participants and brokerage firms
representing such Certificate Owners. Multiple requests and directions from, and
votes of, the Depository as Holder of the Book-Entry Certificates with respect
to any particular matter shall not be deemed inconsistent if they are made with
respect to different Certificate Owners. The Certificate Administrator 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 and the Certificate
Registrar in writing that the Depository is no longer willing or able to
properly discharge its responsibilities with respect to a Class of the
Book-Entry Certificates, and (B) the Depositor is unable to locate a qualified
successor, or (ii) the Depositor at its option advises the Trustee and the
Certificate Registrar in writing that it elects to terminate the book-entry
system through the Depository with respect to a Class of Book-Entry
Certificates, the Certificate Registrar shall notify all affected Certificate
Owners, through the Depository, of the occurrence of any such event and of the
availability of Definitive Certificates to such Certificate Owners requesting
the same. Upon surrender to the Certificate Registrar of the Book-Entry
Certificates of any Class thereof by the Depository, accompanied by registration
instructions from the Depository for registration of transfer, the Certificate
Registrar shall execute, and the Authenticating Agent shall authenticate and
deliver, the Definitive Certificates in respect of such Class to the Certificate
Owners identified in such instructions. None of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Administrator or
the Certificate Registrar shall be liable for any delay in delivery of such
instructions, and each of them may conclusively rely on, and shall be protected
in relying on, such instructions. Upon the issuance of Definitive Certificates
for purposes of evidencing ownership of any Class of Registered Certificates,
the registered holders of such Definitive Certificates shall be recognized as
Certificateholders hereunder and, accordingly, shall be entitled directly to
receive payments on, to exercise Voting Rights with respect to, and to transfer
and exchange such Definitive Certificates.
(d) Notwithstanding any other provisions contained herein, none of
the Trustee, the Certificate Administrator or the Certificate Registrar shall
have any responsibility whatsoever to monitor or restrict the Transfer of
ownership interests in any Certificate (including but not limited to any
Non-Registered Certificate or any Subordinated Certificate) which interests are
transferable through the book-entry facilities of the Depository.
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Trustee and the Certificate Registrar such security or indemnity as may
be reasonably required by them to save each of them harmless, then, in the
absence of actual notice to the Trustee or the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Certificate
Registrar shall execute and the Authenticating Agent shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of the same Class and like Percentage
Interest. Upon the issuance of any new Certificate under this Section, the
Trustee and the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Trustee, the Certificate Administrator and the Certificate Registrar) connected
therewith. Any replacement Certificate issued pursuant to this Section shall
constitute complete and indefeasible evidence of ownership in the applicable
REMIC created hereunder, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time.
SECTION 5.05. Persons Deemed Owners.
Prior to due presentment for registration of transfer, the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Administrator, the Certificate Registrar and any agent of any of
them may treat the Person in whose name any Certificate is registered as of the
related Record Date as the owner of such Certificate for the purpose of
receiving distributions pursuant to Section 4.01 and may treat the person in
whose name each Certificate is registered as of the relevant date of
determination as owner of such Certificate for all other purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Administrator, the Certificate Registrar or any agent of any of
them shall be affected by notice to the contrary.
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE CONTROLLING
CLASS REPRESENTATIVE
SECTION 6.01. Liability of Depositor, Master Servicer and Special
Servicer.
The Depositor, the Master Servicer and the Special Servicer shall be
liable in accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, the Master Servicer
and the Special Servicer herein.
SECTION 6.02. Merger, Consolidation or Conversion of Depositor or
Master Servicer or Special Servicer.
Subject to the following paragraph, the Depositor, the Master
Servicer and the Special Servicer shall each keep in full effect its existence,
rights and franchises as a corporation under the laws of the jurisdiction of its
incorporation or organization, and each will obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Trust Mortgage
Loans and to perform its respective duties under this Agreement.
The Depositor, the Master Servicer or the Special Servicer may be
merged or consolidated with or into any Person (other than the Trustee), or
transfer all or substantially all of its assets (which, in the case of the
Master Servicer or the Special Servicer, may be limited to all or substantially
all of its assets related to commercial mortgage loan servicing) to any Person,
in which case any Person resulting from any merger or consolidation to which the
Depositor, the Master Servicer or the Special Servicer shall be a party, or any
Person succeeding to the business (which, in the case of the Master Servicer or
the Special Servicer, may be limited to the commercial mortgage loan servicing
business) of the Depositor, the Master Servicer or the Special Servicer, shall
be the successor of the Depositor, the Master Servicer or the Special Servicer,
as the case may be, hereunder, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that no successor or surviving
Person shall succeed to the rights of the Master Servicer or the Special
Servicer unless (i) as evidenced in writing by the Rating Agencies, such
succession will not result in an Adverse Rating Event and (ii) such successor or
surviving Person makes the applicable representations and warranties set forth
in Section 3.23.
SECTION 6.03. Limitation on Liability of the Depositor, the Master
Servicer, the Special Servicer and Others.
(a) None of the Depositor, the Master Servicer, the Special Servicer
nor any of the Affiliates, directors, partners, members, managers, shareholders,
officers, employees or agents of any of them shall be under any liability to the
Trust Fund, the Underwriters, the parties hereto, the Certificateholders or any
other Person for any action taken, or for refraining from the taking of any
action, in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the Depositor, the
Master Servicer, the Special Servicer nor any of the Affiliates, directors,
partners, members, managers, shareholders, officers, employees or agents of any
of them against any liability to the Trust Fund, the Trustee, the Certificate
Administrator, the Certificateholders or any other Person for the breach of
warranties or representations made herein by such party, or against any expense
or liability specifically required to be borne by such party without right of
reimbursement pursuant to the terms hereof, or against any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith or negligence
in the performance of its obligations or duties hereunder or negligent disregard
of such obligations or duties. The Depositor, the Master Servicer, the Special
Servicer and any director, officer, employee or agent of the Depositor, the
Master Servicer or the Special Servicer may rely in good faith on any document
of any kind which, prima facie, is properly executed and submitted by any Person
respecting any matters arising hereunder.
The Depositor, the Master Servicer, the Special Servicer, and any
Affiliate, director, shareholder, member, partner, manager, officer, employee or
agent of any of the foregoing shall be indemnified and held harmless by the
Trust Fund out of the Collection Account or the Distribution Account, as
applicable in accordance with Section 3.05, against any loss, liability or
expense (including reasonable legal fees and expenses) incurred in connection
with any legal action or claim relating to this Agreement, the Mortgage Loans or
the Certificates (including, without limitation, the distribution or posting of
reports or other information as contemplated by this Agreement and any indemnity
of a sub-servicer for any loss liability or expense for which the Master
Servicer would be entitled to be indemnified hereunder), other than any loss,
liability or expense: (i) specifically required to be borne thereby pursuant to
the terms hereof or that would otherwise constitute a Servicing Advance; (ii)
incurred in connection with any breach of a representation or warranty made by
it herein; (iii) incurred by reason of bad faith, willful misconduct or
negligence in the performance of its obligations or duties hereunder or
negligent disregard of such obligations or duties; or (iv) incurred in
connection with any violation by any of them of any state or federal securities
law; provided, however, that if and to the extent that a Loan Combination and/or
a related Non-Trust Noteholder is involved, such expenses, costs and liabilities
shall be payable out of the related Loan Combination Custodial Account pursuant
to Section 3.05(e) and, if and to the extent not solely attributable to a
related Non-Trust Loan (or any successor REO Loan with respect thereto), shall
also be payable out of the Collection Account if amounts on deposit in the
related Loan Combination Custodial Account are insufficient therefor; and
provided, further, that in making a determination as to whether any such
indemnity is solely attributable to a Non-Trust Loan (or any successor REO Loan
with respect thereto), the fact that any related legal action was instituted by
such Non-Trust Noteholder shall not create a presumption that such indemnity is
solely attributable thereto. The indemnification provided herein shall survive
the termination of this Agreement and the termination or resignation of the
indemnifying or indemnified party.
(b) None of the Depositor, the Master Servicer or the Special
Servicer shall be under any obligation to appear in, prosecute or defend any
legal or administrative action, proceeding, hearing or examination that is not
incidental to its respective duties under this Agreement and, unless it is
specifically required to bear the costs thereof, that in its opinion may involve
it in any expense or liability for which it is not reasonably assured of
reimbursement by the Trust; provided, however, that the Depositor, the Master
Servicer or the Special Servicer may in its discretion undertake any such
action, proceeding, hearing or examination that it may deem necessary or
desirable with respect to the enforcement and/or protection of the rights and
duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the reasonable legal fees, expenses and costs of such
action, proceeding, hearing or examination and any liability resulting therefrom
shall be expenses, costs and liabilities of the Trust Fund, and the Depositor,
the Master Servicer and the Special Servicer shall be entitled to be reimbursed
therefor out of amounts attributable to the Mortgage Pool on deposit in the
Collection Account as provided by Section 3.05(a); provided, however, that if a
Loan Combination is involved, such expenses, costs and liabilities shall be
payable out of the related Loan Combination Custodial Account pursuant to
Section 3.05(e) and, if and to the extent not solely attributable to a related
Non-Trust Loan (or any successor REO Loan with respect thereto), shall also be
payable out of the Collection Account if amounts on deposit in the related Loan
Combination Custodial Account are insufficient therefor, and provided, further,
that in making a determination as to whether any such expenses, costs and
liabilities are solely attributable to a Non-Trust Loan (or any successor REO
Loan with respect thereto), the fact that any related legal action was
instituted by such Non-Trust Noteholder shall not create a presumption that such
expenses, costs and liabilities are solely attributable thereto.
In no event shall the Master Servicer or the Special Servicer be
liable or responsible for any action taken or omitted to be taken by the other
of them or by the Depositor, the Trustee, the Certificate Administrator or any
Certificateholder, subject to the provisions of Section 8.05(b).
(c) Each of the Master Servicer and the Special Servicer agrees to
indemnify the Depositor, the Trust Fund, the Certificate Administrator and the
Trustee and any Affiliate, director, officer, employee or agent thereof, and
hold it harmless, from and against any and all claims, losses, penalties, fines,
forfeitures, reasonable legal fees and related out-of-pocket costs, judgments,
and any other out-of-pocket costs, liabilities, fees and expenses that any of
them may sustain arising from or as a result of any willful misfeasance, bad
faith or negligence of the Master Servicer or the Special Servicer, as the case
may be, in the performance of its obligations and duties under this Agreement or
by reason of negligent disregard by the Master Servicer or the Special Servicer,
as the case may be, of its duties and obligations hereunder or by reason of
breach of any representations or warranties made by it herein. Notwithstanding
the foregoing, the Master Servicer and the Special Servicer may consult with
counsel, and any written advice or opinion of counsel shall be full and complete
authorization and protection with respect to any action taken or suffered or
omitted by it hereunder in good faith in accordance with the Servicing Standard
and in accordance with such advice or Opinion of Counsel relating to (i) tax
matters, (ii) any amendment of this Agreement under Article XI, (iii) the
defeasance of any Trust Defeasance Mortgage Loan or (iv) any matter involving
legal proceedings with a Mortgagor.
The Trustee or the Certificate Administrator shall immediately
notify the Master Servicer or the Special Servicer, as applicable, if a claim is
made by a third party with respect to this Agreement or the Mortgage Loans
entitling the Trust Fund, the Certificate Administrator or the Trustee to
indemnification hereunder, whereupon the Master Servicer or Special Servicer, as
the case may be, shall assume the defense of such claim and pay all expenses in
connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or them in
respect of such claim. Any failure to so notify the Master Servicer or Special
Servicer, as the case may be, shall not affect any rights that the Trust Fund,
the Certificate Administrator or the Trustee, as the case may be, may have to
indemnification under this Agreement or otherwise, unless the Master Servicer's
or Special Servicer's, as the case may be, defense of such claim is materially
prejudiced thereby. The indemnification provided herein shall survive the
termination of this Agreement and the termination or resignation of the
indemnifying or indemnified party.
The Depositor shall immediately notify the Master Servicer or the
Special Servicer, as applicable, if a claim is made by a third party with
respect to this Agreement or the Mortgage Loans entitling the Depositor to
indemnification hereunder, whereupon the Master Servicer or Special Servicer, as
the case may be, shall assume the defense of such claim and pay all expenses in
connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or them in
respect of such claim. Any failure to so notify the Master Servicer or Special
Servicer, as the case may be, shall not affect any rights that the Depositor may
have to indemnification under this Agreement or otherwise, unless the Master
Servicer's or Special Servicer's, as the case may be, defense of such claim is
materially prejudiced thereby. The indemnification provided herein shall survive
the termination of this Agreement and the termination or resignation of the
indemnifying party.
The Depositor agrees to indemnify the Master Servicer, the Special
Servicer, the Certificate Administrator, the Trustee and any Affiliate,
director, officer, employee or agent thereof, and hold them harmless, from and
against any and all claims, losses, penalties, fines, forfeitures, reasonable
legal fees and related out-of-pocket costs, judgments, and any other
out-of-pocket costs, liabilities, fees and expenses that any of them may sustain
arising from or as a result of any breach of representations and warranties or
the willful misfeasance, bad faith or negligence of the Depositor in the
performance of the Depositor's obligations and duties under this Agreement. The
Master Servicer, the Special Servicer, the Certificate Administrator or the
Trustee, as applicable, shall immediately notify the Depositor if such a claim
is made against the Master Servicer, the Special Servicer, the Certificate
Administrator or the Trustee by a third party with respect to this Agreement or
the Mortgage Loans entitling the Master Servicer, the Special Servicer, the
Certificate Administrator or the Trustee to indemnification by the Depositor
hereunder, whereupon the Depositor shall assume the defense of such claim and
pay all expenses in connection therewith, including counsel fees, and promptly
pay, discharge and satisfy any judgment or decree which may be entered against
the Depositor or the Master Servicer, the Special Servicer, the Certificate
Administrator or the Trustee in respect of such claim. Any failure to so notify
the Depositor shall not affect any rights that any of the foregoing Persons may
have to indemnification under this Agreement or otherwise, unless the
Depositor's defense of such claim is materially prejudiced thereby. The
indemnification provided herein shall survive the termination of this Agreement.
Each of the Trustee and the Certificate Administrator agrees to
indemnify the Master Servicer, the Special Servicer and the Depositor and any
Affiliate, director, officer, employee or agent thereof, and hold them harmless,
from and against any and all claims, losses, penalties, fines, forfeitures,
reasonable legal fees and related out-of-pocket costs, judgments, and any other
out-of-pocket costs, liabilities, fees and expenses that any of them may sustain
arising from or as a result of any breach of representations and warranties made
by it herein or as a result of any willful misfeasance, bad faith or negligence
of the Trustee or the Certificate Administrator in the performance of its
obligations and duties under this Agreement or the negligent disregard by the
Trustee or the Certificate Administrator of its duties and obligations
hereunder. The Depositor, the Master Servicer or the Special Servicer, as
applicable, shall immediately notify the Trustee or the Certificate
Administrator, as applicable, if such a claim is made against the Depositor, the
Master Servicer or the Special Servicer by a third party with respect to this
Agreement or the Mortgage Loans entitling the Depositor, the Master Servicer or
the Special Servicer to indemnification by the Trustee or Certificate
Administrator, as applicable, hereunder, whereupon the Trustee or the
Certificate Administrator, as applicable, shall assume the defense of such claim
and pay all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against the Trustee or the Certificate Administrator or the Depositor, the
Master Servicer or the Special Servicer in respect of such claim. Any failure to
so notify the Trustee or the Certificate Administrator, as applicable, shall not
affect any rights that any of the foregoing Persons may have to indemnification
under this Agreement or otherwise, unless the Trustee's or the Certificate
Administrator's defense of such claim is materially prejudiced thereby. The
indemnification provided herein shall survive the termination of this Agreement
and the termination or resignation of the indemnifying party.
SECTION 6.04. Resignation of Master Servicer and the Special
Servicer.
The Master Servicer and, subject to Section 6.09, the Special
Servicer may each resign from the obligations and duties hereby imposed on it,
upon a determination that its duties hereunder are no longer permissible under
applicable law or are in material conflict by reason of applicable law with any
other activities carried on by it (the other activities of the Master Servicer
or the Special Servicer, as the case may be, so causing such a conflict being of
a type and nature carried on by the Master Servicer or the Special Servicer, as
the case may be, at the date of this Agreement). Any such determination
requiring the resignation of the Master Servicer or the Special Servicer, as
applicable, shall be evidenced by an Opinion of Counsel to such effect which
shall be delivered to the Trustee. Unless applicable law requires the Master
Servicer's or Special Servicer's resignation to be effective immediately, and
the Opinion of Counsel delivered pursuant to the prior sentence so states, no
such resignation shall become effective until the Trustee or other successor
shall have assumed the responsibilities and obligations of the resigning party
in accordance with Section 6.09 or Section 7.02 hereof. The Master Servicer and,
subject to the rights of the Controlling Class under Section 6.09 to appoint a
successor special servicer, the Special Servicer shall each have the right to
resign at any other time provided that (i) a willing successor thereto has been
found by the Master Servicer or Special Servicer, as applicable, (ii) each of
the Rating Agencies confirms in writing that the resignation and the successor's
appointment will not result in an Adverse Rating Event, (iii) the resigning
party pays all costs and expenses in connection with such resignation and the
resulting transfer of servicing, and (iv) the successor accepts appointment
prior to the effectiveness of such resignation and agrees in writing to be bound
by the terms and conditions of this Agreement. Neither the Master Servicer nor
the Special Servicer shall be permitted to resign except as contemplated above
in this Section 6.04.
Consistent with the foregoing, neither the Master Servicer nor the
Special Servicer shall, except as expressly provided herein, assign or transfer
any of its rights, benefits or privileges hereunder to any other Person, or,
except as provided in Sections 3.22 and 4.06, delegate to or subcontract with,
or authorize or appoint any other Person to perform any of the duties, covenants
or obligations to be performed by it hereunder. If, pursuant to any provision
hereof, the duties of the Master Servicer or the Special Servicer are
transferred to a successor thereto, the Master Servicing Fee (except as
expressly contemplated by Section 3.11(a)), the Special Servicing Fee, any
Workout Fee (except as expressly contemplated by Section 3.11(c)) and/or any
Principal Recovery Fee, as applicable, that accrues pursuant hereto from and
after the date of such transfer shall be payable to such successor.
SECTION 6.05. Rights of Depositor, Certificate Administrator and
Trustee in Respect of Master Servicer and the Special
Servicer.
The Master Servicer and the Special Servicer shall each afford the
Depositor, the Underwriters, the Certificate Administrator and the Trustee, upon
reasonable notice, during normal business hours access to all records maintained
thereby in respect of its rights and obligations hereunder and access to
officers thereof responsible for such obligations. Upon reasonable request, the
Master Servicer and the Special Servicer shall each furnish the Depositor, the
Underwriters, the Certificate Administrator and the Trustee with its most recent
publicly available financial statements and such other information as it
possesses, and which it is not prohibited by applicable law or contract from
disclosing, regarding its business, affairs, property and condition, financial
or otherwise, except to the extent such information constitutes proprietary
information or is subject to a privilege under applicable law. The Depositor
may, but is not obligated to, enforce the obligations of the Master Servicer and
the Special Servicer hereunder and may, but is not obligated to, perform, or
cause a designee to perform, any defaulted obligation of the Master Servicer or
Special Servicer hereunder or exercise the rights of the Master Servicer and the
Special Servicer hereunder; provided, however, that neither the Master Servicer
nor the Special Servicer shall be relieved of any of its obligations hereunder
by virtue of such performance by the Depositor or its designee and, provided,
further, that the Depositor may not exercise any right pursuant to Section 7.01
to terminate the Master Servicer or the Special Servicer as a party to this
Agreement. The Depositor shall not have any responsibility or liability for any
action or failure to act by the Master Servicer or the Special Servicer and is
not obligated to supervise the performance of the Master Servicer or the Special
Servicer under this Agreement or otherwise.
SECTION 6.06. Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee and Certificate Administrator.
The Depositor, the Master Servicer and the Special Servicer shall
each (to the extent not already furnished under this Agreement) furnish such
reports, certifications and information (including, with regard to the Master
Servicer, the identity of any Non-Trust Noteholder) as are reasonably requested
by the Trustee or the Certificate Administrator in order to enable the Trustee
or Certificate Administrator to perform the Trustee's or the Certificate
Administrator's respective duties hereunder.
SECTION 6.07. Depositor, Special Servicer, Certificate Administrator
and Trustee to Cooperate with Master Servicer.
The Depositor, the Special Servicer, the Certificate Administrator
and the Trustee shall each (to the extent not already furnished under this
Agreement) furnish such reports, certifications and information as are
reasonably requested by the Master Servicer in order to enable it to perform its
duties hereunder.
SECTION 6.08. Depositor, Master Servicer, Certificate Administrator
and Trustee to Cooperate with Special Servicer.
The Depositor, the Master Servicer, the Certificate Administrator
and the Trustee shall each (to the extent not already furnished under this
Agreement) furnish such reports, certifications and information as are
reasonably requested by the Special Servicer in order to enable it to perform
its duties hereunder.
SECTION 6.09. Designation of Special Servicer by the Controlling
Class.
(a) The Holder or Holders (or, in the case of Book-Entry
Certificates, the Certificate Owner or Certificate Owners) of the Certificates
evidencing a majority of the Voting Rights allocated to the Controlling Class
may at any time and from time to time designate a Person meeting the
requirements set forth in Section 6.04 (including, without limitation, Rating
Agency confirmation) to serve as Special Servicer hereunder and to replace any
existing Special Servicer or any Special Servicer that has resigned or otherwise
ceased to serve as Special Servicer; provided that such Holder or Holders (or
such Certificate Owner or Certificate Owners, as the case may be) shall pay all
costs related to the transfer of servicing if the Special Servicer is replaced
other than due to an Event of Default. Such Holder or Holders (or such
Certificate Owner or Certificate Owners, as the case may be) of the Certificates
evidencing a majority of the Voting Rights allocated to the Controlling Class
shall so designate a Person to serve as replacement Special Servicer by the
delivery to the Certificate Administrator, the Trustee, the Master Servicer and
the existing Special Servicer of a written notice stating such designation. The
Trustee shall, promptly after receiving any such notice, deliver to the Rating
Agencies an executed Notice and Acknowledgment in the form attached hereto as
Exhibit H-1. If such Holder or Holders (or such Certificate Owner or Certificate
Owners, as the case may be) of the Certificates evidencing a majority of the
Voting Rights allocated to the Controlling Class have not replaced the Special
Servicer within 30 days of such Special Servicer's resignation or the date such
Special Servicer has ceased to serve in such capacity, the Trustee shall
designate a successor Special Servicer meeting the requirements set forth in
Section 6.04. Any designated Person shall become the Special Servicer, subject
to satisfaction of the other conditions set forth below, on the date that the
Trustee shall have received written confirmation from all of the Rating Agencies
that the appointment of such Person will not result in an Adverse Rating Event.
The appointment of such designated Person as Special Servicer shall
also be subject to receipt by the Trustee of (1) an Acknowledgment of Proposed
Special Servicer in the form attached hereto as Exhibit H-2, executed by the
designated Person, and (2) an Opinion of Counsel (at the expense of the Person
designated to become the Special Servicer) to the effect that the designation of
such Person to serve as Special Servicer is in compliance with this Section 6.09
and all other applicable provisions of this Agreement, that upon the execution
and delivery of the Acknowledgment of Proposed Special Servicer the designated
Person shall be bound by the terms of this Agreement, and subject to customary
limitations, that this Agreement shall be enforceable against the designated
Person in accordance with its terms. Any existing Special Servicer shall be
deemed to have resigned simultaneously with such designated Person's becoming
the Special Servicer hereunder; provided, however, that the resigning Special
Servicer shall continue to be entitled to receive all amounts accrued or owing
to it under this Agreement on or prior to the effective date of such
resignation, and it shall continue to be entitled to the benefits of Section
6.03 notwithstanding any such resignation. Such resigning Special Servicer shall
cooperate with the Trustee and the replacement Special Servicer in effecting the
termination of the resigning Special Servicer's responsibilities and rights
hereunder, including, without limitation, the transfer (within two Business Days
of the terminated Special Servicer receiving notice from the Trustee that all
conditions to the appointment of the replacement Special Servicer hereunder have
been satisfied) to the replacement Special Servicer for administration by it of
all cash amounts that shall at the time be or should have been credited by the
Special Servicer to the Collection Account or the applicable REO Account or
should have been delivered to the Master Servicer or that are thereafter
received with respect to Specially Serviced Mortgage Loans and REO Properties.
SECTION 6.10. Master Servicer or Special Servicer as Owner of a
Certificate.
The Master Servicer or an Affiliate of the Master Servicer or the
Special Servicer or an Affiliate of the Special Servicer may become the Holder
of (or, in the case of a Book-Entry Certificate, Certificate Owner with respect
to) any Certificate with (except as set forth in the definition of
"Certificateholder") the same rights it would have if it were not the Master
Servicer or the Special Servicer or an Affiliate thereof. If, at any time during
which the Master Servicer or the Special Servicer or an Affiliate of the Master
Servicer or the Special Servicer is the Holder of (or, in the case of a
Book-Entry Certificate, Certificate Owner with respect to) any Certificate, the
Master Servicer or the Special Servicer proposes to take action (including for
this purpose, omitting to take action) that (i) is not expressly prohibited by
the terms hereof and would not, in the Master Servicer's or the Special
Servicer's good faith judgment, violate the Servicing Standard, and (ii) if
taken, might nonetheless, in the Master Servicer's or the Special Servicer's
reasonable, good faith judgment, be considered by other Persons to violate the
Servicing Standard, then the Master Servicer or the Special Servicer may (but
need not) seek the approval of the Certificateholders to such action by
delivering to the Certificate Administrator (with a copy to the Trustee) a
written notice that (a) states that it is delivered pursuant to this Section
6.10, (b) identifies the Percentage Interest in each Class of Certificates
beneficially owned by the Master Servicer or the Special Servicer or an
Affiliate of the Master Servicer or the Special Servicer, as appropriate, and
(c) describes in reasonable detail the action that the Master Servicer or the
Special Servicer proposes to take. The Certificate Administrator, upon receipt
of such notice, shall forward it to the Certificateholders (other than the
Master Servicer and its Affiliates or the Special Servicer and its Affiliates,
as appropriate), together with such instructions for response as the Certificate
Administrator shall reasonably determine. If at any time Certificateholders
holding greater than 50% of the Voting Rights of all Certificateholders
(calculated without regard to the Certificates beneficially owned by the Master
Servicer or its Affiliates or the Special Servicer or its Affiliates, as
appropriate) shall have failed to object in writing to the proposal described in
the written notice, and if the Master Servicer or the Special Servicer shall act
as proposed in the written notice within 30 days, such action shall be deemed to
comply with, but not modify, the Servicing Standard. The Certificate
Administrator shall be entitled to reimbursement from the Master Servicer or the
Special Servicer, as applicable, for the reasonable expenses of the Certificate
Administrator incurred pursuant to this paragraph. It is not the intent of the
foregoing provision that the Master Servicer or the Special Servicer be
permitted to invoke the procedure set forth herein with respect to routine
servicing matters arising hereunder, but rather in the case of unusual
circumstances.
SECTION 6.11. The Controlling Class Representative.
(a) Subject to Section 6.11(b), the Controlling Class Representative
will be entitled to advise the Special Servicer with respect to the following
actions of the Special Servicer with respect to the Serviced Trust Mortgage
Loans and any Administered REO Properties, and notwithstanding anything herein
to the contrary except as necessary or advisable to avoid an Adverse REMIC Event
and except as set forth in, and in any event subject to, Section 6.11(b), the
Special Servicer will not be permitted to take (or permit the Master Servicer to
take) any of the following actions with respect to the Serviced Trust Mortgage
Loans and any Administered REO Properties as to which the Controlling Class
Representative has objected in writing within 10 Business Days of being notified
in writing thereof, which notification with respect to the action described in
clauses (vi) and (viii) below shall be copied by the Special Servicer to the
Master Servicer (provided that if such written objection has not been received
by the Special Servicer within such 10 Business Day period, then the Controlling
Class Representative's approval will be deemed to have been given):
(i) any foreclosure upon or comparable conversion (which may include
acquisitions of an Administered REO Property) of the ownership of
properties securing such of the Trust Specially Serviced Mortgage Loans as
come or have come into and continue in default;
(ii) any modification or consent to a modification of a material
term of a Serviced Trust Mortgage Loan (excluding the waiver of any
due-on-sale or due-on-encumbrance clause, as set forth in clause (vii)
below), including the timing of payments or a modification consisting of
the extension of the maturity date of a Serviced Trust Mortgage Loan;
(iii) any proposed sale of any Serviced Trust Defaulted Mortgage
Loan or any Administered REO Property (other than in connection with the
termination of the Trust Fund or, in the case of a Serviced Trust
Defaulted Mortgage Loan, pursuant to Section 3.18) for less than the
Purchase Price of the subject Serviced Trust Defaulted Mortgage Loan or
related Trust REO Loan, as applicable;
(iv) any determination to bring an Administered REO Property into
compliance with applicable environmental laws or to otherwise address
Hazardous Materials located at an Administered REO Property;
(v) any release of material real property collateral for any
Serviced Trust Mortgage Loan, other than (A) where the release is not
conditioned upon obtaining the consent of the lender or certain specified
conditions being satisfied, (B) upon satisfaction of that Serviced Trust
Mortgage Loan, (C) in connection with a pending or threatened condemnation
action or (D) in connection with a full or partial defeasance of that
Serviced Trust Mortgage Loan;
(vi) any acceptance of substitute or additional real property
collateral for any Serviced Trust Mortgage Loan (except where the
acceptance of the substitute or additional collateral is not conditioned
upon obtaining the consent of the lender, in which case only notice to the
Controlling Class Representative will be required);
(vii) any waiver of a due-on-sale or due-on-encumbrance clause in
any Serviced Trust Mortgage Loan;
(viii) any releases of earn-out reserves or related letters of
credit with respect to a Mortgaged Property securing a Serviced Trust
Mortgage Loan (other than where the release is not conditioned upon
obtaining the consent of the lender, in which case only notice to the
Controlling Class Representative will be required, it being understood and
agreed that for purposes of this Agreement, the release of earnout
reserves shall mean the disbursement or funding to a Mortgagor of
previously unfunded, escrowed or otherwise reserved portions of the loan
proceeds of the applicable Mortgage Loan until certain conditions
precedent thereto relating to the satisfaction of performance related
criteria (i.e. project reserve thresholds, lease-up requirements, sales
requirements, etc.), as set forth in the applicable Mortgage Loan
documents have been satisfied);
(ix) any termination or replacement, or consent to the termination
or replacement, of a property manager with respect to any Serviced
Mortgaged Property or any termination or change, or consent to the
termination or change, of the franchise for any Serviced Mortgaged
Property operated as a hospitality property (other than where the action
is not conditioned upon obtaining the consent of the lender, in which case
only prior notice to the Controlling Class Representative will be
required);
(x) any determination that an insurance-related default in respect
of a Serviced Trust Mortgage Loan is an Acceptable Insurance Default or
that earthquake or terrorism insurance is not available at commercially
reasonable rates; and
(xi) any waiver of insurance required under the related Mortgage
Loan documents for a Serviced Trust Mortgage Loan (except as contemplated
in clause (x) above);
provided that, with respect to any Serviced Trust Mortgage Loan (other than a
Trust Specially Serviced Mortgage Loan), the 10 Business Days within which the
Controlling Class Representative must object to any such action shall not exceed
by more than five Business Days the 10 Business Day period the Special Servicer
has to object to the Master Servicer taking such action as set forth in Sections
3.02, 3.08 and 3.20.
In addition, subject to Section 6.11(b), the Controlling Class
Representative may direct the Special Servicer to take, or to refrain from
taking, any such actions as the Controlling Class Representative may deem
advisable or as to which provision is otherwise made herein.
(b) Notwithstanding anything herein to the contrary, no advice,
direction or objection given or made, or consent withheld, by the Controlling
Class Representative, contemplated by Section 6.11(a) or any other section of
this Agreement, may (i) require or cause the Master Servicer or the Special
Servicer to violate any applicable law, the terms of any Serviced Trust Mortgage
Loan, any provision of this Agreement, including without limitation the Master
Servicer's or the Special Servicer's obligation to act in accordance with the
Servicing Standard or the Mortgage Loan documents for any Serviced Trust
Mortgage Loan, (ii) result in an Adverse REMIC Event with respect to REMIC I or
REMIC II or otherwise violate the REMIC Provisions or result in an Adverse
Grantor Trust Event or have adverse tax consequences for the Trust Fund, (iii)
expose the Depositor, the Master Servicer, the Special Servicer, the Trust Fund,
the Trustee, the Certificate Administrator or any of their respective
Affiliates, directors, officers, employees or agents, to any claim, suit or
liability to which they would not otherwise be subject absent such advice,
direction or objection or consent withheld, (iv) materially expand the scope of
the Master Servicer's or the Special Servicer's responsibilities hereunder or
(v) cause the Master Servicer or the Special Servicer to act, or fail to act, in
a manner which violates the Servicing Standard. The Master Servicer and the
Special Servicer shall disregard any action, direction or objection on the part
of the Controlling Class Representative that would have any of the effects
described in clauses (i) through (v) of the prior sentence.
The Special Servicer shall not be obligated to seek approval from
the Controlling Class Representative under Section 6.11(a) for any actions to be
taken by the Special Servicer with respect to any particular Trust Specially
Serviced Mortgage Loan if (i) the Special Servicer has, as set forth in the
first paragraph of Section 6.11(a), notified the Controlling Class
Representative in writing of various actions that the Special Servicer proposes
to take with respect to the work-out or liquidation of that Trust Specially
Serviced Mortgage Loan and (ii) for 30 days following the first such notice, the
Controlling Class Representative has objected to all of the proposed actions and
has failed to suggest any alternative actions that the Special Servicer
considers to be consistent with the Servicing Standard.
(c) The Controlling Class Representative will have no duty or
liability to the Certificateholders (other than the Controlling Class) for any
action taken, or for refraining from the taking of any action pursuant to this
Agreement, or for errors in judgment. By its acceptance of a Certificate, each
Certificateholder confirms its understanding that the Controlling Class
Representative may take actions that favor the interests of one or more Classes
of the Certificates over other Classes of the Certificates, and that the
Controlling Class Representative may have special relationships and interests
that conflict with those of Holders of some Classes of the Certificates, that
the Controlling Class Representative act solely in the interests of the Holders
of the Controlling Class, that the Controlling Class Representative does not
have any duties to the Holders of any Class of Certificates other than the
Controlling Class that the Controlling Class Representative shall have no
liability by reason of its having acted solely in the interests of the Holders
of the Controlling Class and no Certificateholder may take any action whatsoever
against the Controlling Class Representative or any director, officer, employee,
agent or principal thereof for having so acted.
SECTION 6.12. Certain Matters with Respect to the Glendale Galleria
Loan Combination.
(a) The Controlling Class Representative is hereby designated as the
representative of the Trust for purposes of exercising the rights and powers of
the holder of the Glendale Galleria Trust Mortgage Loan under (i) the Glendale
Galleria Intercreditor Agreement, to purchase the Glendale Galleria Pari Passu
Non-Trust Loan, which right shall be exercised by the Controlling Class
Representative in its individual capacity with it own funds; and (ii) the MLMT
Series 2005-CKI1 Pooling and Servicing Agreement, to consult with the MLMT
Series 2005-CKI1 Applicable Servicer with respect to the servicing of the
Glendale Galleria Trust Mortgage Loan. The Trustee shall take such actions as
are necessary or appropriate to make such designation effective in accordance
with the Glendale Galleria Intercreditor Agreement and the MLMT Series 2005-CKI1
Pooling and Servicing Agreement.
(b) If the Trustee is requested to take any action in its capacity
as holder of the Glendale Galleria Trust Mortgage Loan, pursuant to the Glendale
Galleria Intercreditor Agreement and/or the MLMT Series 2005-CKI1 Pooling and
Servicing Agreement, the Trustee shall notify (in writing), and act in
accordance with the instructions of, the Controlling Class Representative;
provided that, if such instructions are not provided within the time period
established by the Trustee within the requirements of the Glendale Galleria
Intercreditor Agreement, the Trustee (or the Master Servicer if the requested
action or inaction is servicing-related) shall take such action or inaction, as
directed in writing by the Holders of the majority of the Voting Rights
allocated to the Holders who provided written directions to the Certificate
Administrator (provided that such directing Holders shall be the Holders of at
least 25% of all the Voting Rights allocated to the Certificates), or if no such
written direction is received, as it deems to be in the best interests of the
Certificateholders (as a collective whole). The Certificate Administrator shall
promptly forward to the Trustee, the Master Servicer, the Depositor and the
Controlling Class Representative all material notices or other communications
delivered to the Certificate Administrator in connection with the MLMT Series
2005-CKI1 Pooling and Servicing Agreement.
(c) The Controlling Class Representative and the Holders of 25% of
the Voting Rights allocated to the Certificates shall each be entitled to direct
the Trustee, in its capacity as holder of the Glendale Galleria Trust Mortgage
Loan on behalf of the Trust, to exercise the right provided such holder, under
the MLMT Series 2005-CKI1 Pooling and Servicing Agreement, to request that a
sub-servicer be appointed with respect to the Glendale Galleria Loan Combination
if an "Event of Default" caused by the MLMT Series 2005-CKI1 Master Servicer
under the MLMT Series 2005-CKI1 Pooling and Servicing Agreement affects the
Trust as the holder of the Glendale Galleria Trust Mortgage Loan. The Trustee
shall act in accordance with such direction. Any expenses required to be borne
by the holder of the Glendale Galleria Trust Mortgage Loan in connection with
exercising the above-referenced right shall be borne by the Controlling Class
Representative or the directing Holders of 25% of the Voting Rights allocated to
the Certificates, as the case may be, and not by the Trustee or the Trust Fund.
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
(a) "Event of Default," wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer to deposit into the
Collection Account or a Loan Combination Custodial Account any
amount required to be so deposited by it under this Agreement, which
failure continues unremedied for two Business Days following the
date on which the deposit was required to be made; or
(ii) any failure by the Master Servicer to deposit into, or to
remit to the Certificate Administrator for deposit into, the
Distribution Account or any other account maintained by the
Certificate Administrator hereunder, any amount required to be so
deposited or remitted by it under this Agreement, which failure
continues unremedied until 11:00 a.m. New York City time on the
Business Day following the date on which the remittance was required
to be made, provided that to the extent the Master Servicer does not
timely make such remittances, the Master Servicer shall pay the
Certificate Administrator (for the account of the Certificate
Administrator) interest on any amount not timely remitted at the
Prime Rate from and including the applicable required remittance
date to but not including the date such remittance is actually made;
or
(iii) any failure by the Special Servicer to deposit into the
applicable REO Account or to deposit into, or to remit to the Master
Servicer for deposit into, the Collection Account, any amount
required to be so deposited or remitted by it under this Agreement
provided; however that the failure to deposit or remit such amount
shall not be an Event of Default if such failure is remedied within
one Business Day and in any event on or prior to the related P&I
Advance Date; or
(iv) any failure by the Master Servicer to timely make any
Servicing Advance required to be made by it hereunder, which
Servicing Advance remains unmade for a period of five Business Days
following the date on which notice shall have been given to the
Master Servicer by the Trustee as provided in Section 3.03(c); or
(v) any failure on the part of the Master Servicer or the
Special Servicer duly to observe or perform in any material respect
any other of the covenants or agreements on the part of the Master
Servicer or the Special Servicer, as the case may be, contained in
this Agreement which failure continues unremedied for a period of 30
days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the
Master Servicer or the Special Servicer, as the case may be, by any
other party hereto (with a copy to each other party hereto) or by
the Holders of Certificates entitled to at least 25% of the Voting
Rights, provided that with respect to any such failure that is not
curable within such 30-day period, the Master Servicer or the
Special Servicer, as the case may be, shall have an additional cure
period of 30 days so long as the Master Servicer or the Special
Servicer, as the case may be, has commenced to cure such failure
within the initial 30-day period and provided the Trustee with an
Officer's Certificate certifying that it has diligently pursued, and
is diligently continuing to pursue, a full cure; or
(vi) any breach on the part of the Master Servicer or the
Special Servicer of any representation or warranty contained in this
Agreement that materially and adversely affects the interests of any
Class of Certificateholders and which breach continues unremedied
for a period of 30 days after the date on which written notice of
such breach, requiring the same to be remedied, shall have been
given to the Master Servicer or the Special Servicer, as the case
may be, by any other party hereto (with a copy to each other party
hereto) or by the Holders of Certificates entitled to at least 25%
of the Voting Rights, provided, however, that with respect to any
such breach which is not curable within such 30-day period, the
Master Servicer or the Special Servicer, as the case may be, shall
have an additional cure period of 30 days so long as the Master
Servicer or the Special Servicer, as the case may be, has commenced
to cure such breach within the initial 30-day period and provided
the Trustee with an Officer's Certificate certifying that it has
diligently pursued, and is diligently continuing to pursue, a full
cure; or
(vii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency
or similar law for the appointment of a conservator, receiver,
liquidator, trustee or similar official in any bankruptcy,
insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the
Master Servicer or the Special Servicer and such decree or order
shall have remained in force undischarged, undismissed or unstayed
for a period of 60 days, provided, however, that the Master Servicer
or the Special Servicer, as appropriate, will have an additional
period of 30 days to effect such discharge, dismissal or stay so
long as the Master Servicer or the Special Servicer, as appropriate,
has commenced the appropriate proceedings to have such decree or
order dismissed, discharged or stayed within the initial 60 day
period; or
(viii) the Master Servicer or the Special Servicer shall
consent to the appointment of a conservator, receiver, liquidator,
trustee or similar official in any bankruptcy, insolvency,
readjustment of debt, marshaling of assets and liabilities or
similar proceedings of or relating to it or of or relating to all or
substantially all of its property; or
(ix) the Master Servicer or the Special Servicer shall admit
in writing its inability to pay its debts generally as they become
due, file a petition to take advantage of any applicable bankruptcy,
insolvency or reorganization statute, make an assignment for the
benefit of its creditors, voluntarily suspend payment of its
obligations, or take any corporate action in furtherance of the
foregoing; or
(x) a servicing officer of the Master Servicer or the Special
Servicer obtains actual knowledge that Xxxxx'x has (a) qualified,
downgraded or withdrawn any rating then assigned by it to any Class
of Certificates, or (b) placed any Class of Certificates on "watch
status" in contemplation of possible rating downgrade or withdrawal
(and that "watch status" placement has not have been withdrawn by it
within sixty (60) days of such placement), and, in either case,
cited servicing concerns with the Master Servicer or Special
Servicer as the sole or a material factor in such rating action; or
(xi) the Master Servicer ceases to be listed on S&P's Select
Servicer List as a U.S. Commercial Mortgage Master Servicer or the
Special Servicer ceases to be listed on S&P's Select Servicer List
as a U.S. Commercial Mortgage Special Servicer, and any of the
ratings assigned by S&P to any Class of Certificates is qualified,
downgraded or withdrawn (or is placed on "negative credit watch"
status) in connection with the removal from such list and the Master
Servicer or Special Servicer, as the case may be, is not reinstated
to such applicable list within sixty (60) days after its removal
therefrom.
(b) If any Event of Default shall occur with respect to the Master
Servicer or the Special Servicer (in either case, for purposes of this Section
7.01(b), the "Defaulting Party") and shall be continuing, then, and in each and
every such case, so long as such Event of Default shall not have been remedied,
the Trustee may, and at the written direction of the Controlling Class
Representative or the Holders of Certificates entitled to at least 25% of the
Voting Rights, the Trustee shall, by notice in writing to the Defaulting Party
(with a copy of such notice to each other party hereto and the Rating Agencies),
terminate all of the rights and obligations (but not the liabilities for actions
and omissions occurring prior thereto) of the Defaulting Party under this
Agreement and in and to the Trust Fund and each Non-Trust Loan, other than its
rights, if any, as a Certificateholder hereunder or as holder of a Non-Trust
Loan; provided that the Master Servicer and the Special Servicer each shall, if
terminated pursuant to this Section 7.01(b), continue to be entitled to receive
all amounts accrued or owing to it under this Agreement on or prior to the date
of such termination, whether in respect of Advances or otherwise, and it (and
each of its Affiliates, directors, partners, members, managers, shareholders,
officers, employees or agents) shall continue to be entitled to the benefits of
Section 6.03 notwithstanding any such termination; provided, further, that the
Master Servicer may not be terminated solely for an Event of Default that
affects only a Non-Trust Noteholder; and provided, further, that, except as
provided in Section 7.01(c), the Special Servicer may not be terminated solely
for an Event of Default that affects only a Non-Trust Noteholder. From and after
the receipt by the Defaulting Party of such written notice of termination, all
authority and power of the Defaulting Party under this Agreement, whether with
respect to the Certificates (other than as a holder of any Certificate) or the
Mortgage Loans or otherwise, shall pass to and be vested in the Trustee pursuant
to and under this Section, and, without limitation, the Trustee is hereby
authorized and empowered to execute and deliver, on behalf of and at the expense
of the Defaulting Party, as attorney-in-fact or otherwise, any and all documents
and other instruments, and to do or accomplish all other acts or things
necessary or appropriate to effect the purposes of such notice of termination,
whether to complete the transfer and endorsement or assignment of the Mortgage
Loans and related documents, or otherwise. The Master Servicer and the Special
Servicer each agree that, if it is terminated pursuant to this Section 7.01(b),
it shall promptly (and in any event no later than 20 Business Days subsequent to
its receipt of the notice of termination) provide the Trustee with all documents
and records, including those in electronic form, requested thereby to enable the
Trustee or a successor Master Servicer or Special Servicer to assume the Master
Servicer's or Special Servicer's, as the case may be, functions hereunder, and
shall cooperate with the Trustee in effecting the termination of the Master
Servicer's or Special Servicer's, as the case may be, responsibilities and
rights hereunder, including, without limitation, (i) the transfer within 5
Business Days to the Trustee or a successor Master Servicer for administration
by it of all cash amounts that shall at the time be or should have been credited
by the Master Servicer to the Collection Account, any Loan Combination Custodial
Account, the Distribution Account, a Servicing Account or a Reserve Account (if
the Master Servicer is the Defaulting Party) or that are thereafter received by
or on behalf of it with respect to any Mortgage Loan or (ii) the transfer within
two Business Days to the Trustee or a successor Special Servicer for
administration by it of all cash amounts that shall at the time be or should
have been credited by the Special Servicer to an REO Account, the Collection
Account, any Loan Combination Custodial Account, a Servicing Account or a
Reserve Account or delivered to the Master Servicer (if the Special Servicer is
the Defaulting Party) or that are thereafter received by or on behalf of it with
respect to any Mortgage Loan or REO Property. Any costs or expenses in
connection with any actions to be taken by the Master Servicer, the Special
Servicer or the Trustee pursuant to this paragraph shall be borne by the
Defaulting Party and if not paid by the Defaulting Party within 90 days after
the presentation of reasonable documentation of such costs and expenses, such
costs and expenses shall be reimbursed by the Trust Fund; provided, however,
that the Defaulting Party shall not thereby be relieved of its liability for
such costs and expenses. If and to the extent that the Defaulting Party has not
reimbursed such costs and expenses, the Trustee shall have an affirmative
obligation to take all reasonable actions to collect such expenses on behalf of
and at the expense of the Trust Fund. For purposes of this Section 7.01 and of
Section 7.03(b), the Trustee shall not be deemed to have knowledge of an event
which constitutes, or which with the passage of time or notice, or both, would
constitute an Event of Default described in clauses (i)-(viii) of subsection (a)
above unless a Responsible Officer of the Trustee has actual knowledge thereof
or unless notice of any event which is in fact such an Event of Default is
received by the Trustee and such notice references the Certificates, the Trust
Fund or this Agreement.
(c) In the case of an Adverse Rating Event or prospective Adverse
Rating Event that has resulted in or may give rise to an Event of Default under
Section 7.01(a)(x) or (xi) in respect of the Master Servicer or the Special
Servicer and of which the Trustee has notice, the Trustee shall promptly
following its receipt of notice thereof provide written notice thereof to the
Master Servicer or the Special Servicer, as applicable. Notwithstanding Section
7.01(b), if the Master Servicer receives a notice of termination under Section
7.01(b) solely due to an Event of Default under Section 7.01(a)(x) or (xi), and
if the terminated Master Servicer provides the Trustee with the appropriate
"request for proposal" materials within five (5) Business Days following such
termination, then the Master Servicer shall continue to serve in such capacity
hereunder until a successor thereto is selected in accordance with this Section
7.01(c) or the expiration of 45 days from the Master Servicer's receipt of the
notice of termination, whichever occurs first. Upon receipt of such "request for
proposal" materials from the terminated Master Servicer, the Trustee shall
promptly thereafter (using such "request for proposal" materials) solicit good
faith bids for the rights to master service the Mortgage Loans under this
Agreement from at least three (3) Persons qualified to act as a successor Master
Servicer hereunder in accordance with Section 6.02 and Section 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 terminated 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 master
service the Mortgage 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 receipt of notice of termination by
the terminated Master Servicer. The Trustee shall solicit bids on the basis of
both: (i) such successor Master Servicer (x) retaining all existing
Sub-Servicers to continue the primary servicing of the Mortgage Loans pursuant
to the terms of the respective Sub-Servicing Agreements and (y) entering into a
Sub-Servicing Agreement with the terminated Master Servicer under which the
terminated Master Servicer would sub-service each of the Mortgage Loans not then
subject to a Sub-Servicing Agreement at a sub-servicing fee rate per annum equal
to the related Master Servicing Fee Rate minus, in the case of each Trust
Mortgage Loan serviced, 0.01% per annum (each, a "Servicing-Retained Bid"); and
(ii) terminating each existing 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. The Trustee shall direct the Successful Bidder to enter into this
Agreement as successor Master Servicer pursuant to the terms hereof (and, if the
successful bid was a Servicing-Retained Bid, to enter into a Sub-Servicing
Agreement with the terminated Master Servicer as contemplated above) no later
than 45 days after the receipt of notice of termination by the terminated Master
Servicer.
Upon the assignment and acceptance of the master servicing rights
hereunder 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
terminated Master Servicer the amount of such cash bid received from the
Successful Bidder (net of "out-of-pocket" expenses incurred in connection with
obtaining such bid and transferring servicing) 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 terminated Master Servicer shall be responsible for all
out-of-pocket expenses incurred in connection with the attempt to sell its
rights to master service the Mortgage Loans, which expenses are not reimbursed
to the party that incurred such expenses pursuant to the preceding paragraph. In
the event that the Master Servicer does not reimburse the Trustee for such
expenses incurred, such expenses shall be an expense of the Trust Fund.
If the Successful Bidder has not entered into this Agreement as
successor Master Servicer within 45 days after the terminated Master Servicer
received written notice of termination or no Successful Bidder was identified
within such 45-day period, then the terminated Master Servicer 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). In the event that the Master Servicer
does not reimburse the Trustee for such expenses incurred, such expenses shall
be an expense of the Trust Fund. The Trustee thereafter may act or may select a
successor to act as Master Servicer hereunder in accordance with Section 7.02.
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer or the Special Servicer
resigns pursuant to Section 6.04 or receives a notice of termination pursuant to
Section 7.01, the Trustee shall, unless a successor is appointed pursuant to
Section 6.04 or 6.09, be the successor in all respects to the Master Servicer or
the Special Servicer, as the case may be, in its capacity as such under this
Agreement and the transactions set forth or provided for herein and shall have
all (and the former Master Servicer or the Special Servicer, as the case may be,
shall cease to have any) of the responsibilities, duties and liabilities (except
as provided in the next sentence) of the Master Servicer or the Special
Servicer, as the case may be, arising thereafter, including, without limitation,
if the Master Servicer is the resigning or terminated party, the Master
Servicer's obligation to make P&I Advances, the unmade P&I Advances that gave
rise to such Event of Default; provided that any failure to perform such duties
or responsibilities caused by the Master Servicer's or the Special Servicer's,
as the case may be, failure to provide information or monies required by Section
7.01 shall not be considered a default by the Trustee hereunder. Notwithstanding
anything contrary in this Agreement, the Trustee shall in no event be held
responsible or liable with respect to any of the representations and warranties
of the resigning or terminated party (other than the Trustee) or for any losses
incurred by such resigning or terminated party pursuant to Section 3.06
hereunder nor shall the Trustee be required to purchase any Mortgage Loan
hereunder. As compensation therefor, the Trustee shall be entitled to all fees
and other compensation which the resigning or terminated party would have been
entitled to if the resigning or terminated party had continued to act hereunder.
Notwithstanding the above and subject to its obligations under Section 3.22(d)
and 7.01(b), the Trustee may, if it shall be unwilling in its sole discretion to
so act as either Master Servicer or Special Servicer, as the case may be, or
shall, if it is unable to so act as either Master Servicer or Special Servicer,
as the case may be, or shall, if the Trustee is not approved as a master
servicer or a special servicer, as the case may be, by any of the Rating
Agencies, or if either the Controlling Class Representative or the Holders of
Certificates entitled to a majority of the Voting Rights so request in writing
to the Trustee, promptly appoint, subject to the approval of each of the Rating
Agencies (as evidenced by written confirmation therefrom to the effect that the
appointment of such institution would not cause an Adverse Rating Event, or
petition a court of competent jurisdiction to appoint, any established mortgage
loan servicing institution that meets the requirements of Section 6.02
(including, without limitation, rating agency confirmation), which institution
shall, in the case of an appointment by the Trustee, be reasonably acceptable to
the Controlling Class Representative; provided, however, that in the case of a
resigning or terminated Special Servicer, such appointment shall be subject to
the rights of the Holders or Certificate Owners of Certificates evidencing a
majority of the Voting Rights allocated to the Controlling Class to designate a
successor pursuant to Section 6.09. Except with respect to an appointment
provided below, no appointment of a successor to the Master Servicer or the
Special Servicer hereunder shall be effective until the assumption of the
successor to such party of all its responsibilities, duties and liabilities
under this Agreement. Pending appointment of a successor to the Master Servicer
or the Special Servicer hereunder, the Trustee shall act in such capacity as
hereinabove provided. Notwithstanding the above, the Trustee shall, if the
Master Servicer is the resigning or terminated party and the Trustee is
prohibited by law or regulation from making P&I Advances, promptly appoint any
established mortgage loan servicing institution that has a net worth of not less
than $15,000,000 and is otherwise acceptable to each Rating Agency (as evidenced
by written confirmation therefrom to the effect that the appointment of such
institution would not cause an Adverse Rating Event), as the successor to the
Master Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Master Servicer hereunder
(including, without limitation, the obligation to make P&I Advances), which
appointment will become effective immediately. In connection with any such
appointment and assumption described herein, the Trustee may make such
arrangements for the compensation of such successor out of payments on the
Mortgage Loans and REO Properties as it and such successor shall agree, subject
to the terms of this Agreement and/or any Loan Combination Intercreditor
Agreement limiting the use of funds received in respect of a Loan Combination to
matters related to the related Loan Combination; provided, however, that no such
compensation shall be in excess of that permitted the resigning or terminated
party hereunder. Such successor and the other parties hereto shall take such
action, consistent with this Agreement, as shall be necessary to effectuate any
such succession.
SECTION 7.03. Notification to Certificateholders.
(a) Upon any resignation of the Master Servicer or the Special
Servicer pursuant to Section 6.04, any termination of the Master Servicer or the
Special Servicer pursuant to Section 7.01, any appointment of a successor to the
Master Servicer or the Special Servicer pursuant to Section 7.02 or the
effectiveness of any designation of a new Special Servicer pursuant to Section
6.09, the Certificate Administrator shall give prompt written notice thereof to
Certificateholders at their respective addresses appearing in the Certificate
Register and each Non-Trust Noteholder.
(b) Not later than the later of (i) 60 days after the occurrence of
any event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five days after a Responsible Officer of
the Trustee has notice of the occurrence of such an event, the Trustee shall
notify the Depositor and the Certificate Administrator, and the Certificate
Administrator shall notify all Certificateholders, each Non-Trust Noteholder (if
affected thereby) and the Rating Agencies of such occurrence, unless such
default shall have been cured.
SECTION 7.04. Waiver of Events of Default.
Subject to Section 7.01(c), the Holders representing at least
66-2/3% of the Voting Rights allocated to each Class of Certificates affected by
any Event of Default hereunder may waive such Event of Default; provided,
however, that an Event of Default under clauses (i), (ii), (iii), (x) or (xi) 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, subject to
Section 7.01(c), such Event of Default shall cease to exist and shall be deemed
to have been remedied for every purpose hereunder. No such waiver shall extend
to any subsequent or other Event of Default or impair any right consequent
thereon except to the extent expressly so waived. Notwithstanding any other
provisions of this Agreement, for purposes of waiving any Event of Default
pursuant to this Section 7.04, Certificates registered in the name of the
Depositor or any Affiliate of the Depositor shall be entitled to Voting Rights
with respect to the matters described above.
SECTION 7.05. Additional Remedies of Trustee upon Event of Default.
During the continuance of any Event of Default, so long as such
Event of Default shall not have been remedied, the Trustee, in addition to the
rights specified in Section 7.01, shall have the right, in its own name and as
trustee of an express trust, to take all actions now or hereafter existing at
law, in equity or by statute to enforce its rights and remedies and to protect
the interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filings of proofs of claim and debt in connection
therewith). No remedy provided for by this Agreement shall be exclusive of any
other remedy, and each and every remedy shall be cumulative and in addition to
any other remedy, and no delay or omission to exercise any right or remedy shall
impair any such right or remedy or shall be deemed to be a waiver of any Event
of Default. Under no circumstances shall the rights provided to the Trustee
under this Section 7.05 be construed as a duty or obligation of the Trustee.
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE CERTIFICATE ADMINISTRATOR
SECTION 8.01. Duties of Trustee and the Certificate Administrator
(a) Each of the Certificate Administrator and, prior to the
occurrence of an Event of Default and after the curing or waiver of all Events
of Default which may have occurred, the Trustee, undertakes to perform such
duties and only such duties as are specifically set forth in this Agreement. If
an Event of Default occurs and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Agreement, and use the same degree of
care and skill in their exercise as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs. Any permissive right of the
Trustee and the Certificate Administrator contained in this Agreement shall not
be construed as a duty.
(b) The Trustee and Certificate Administrator, upon receipt of all
resolutions, certificates, statements, opinions, reports, documents, orders or
other instruments furnished to the Trustee or the Certificate Administrator, as
applicable, that are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), shall examine them to
determine whether they conform to the requirements of this Agreement to the
extent specifically set forth herein or therein. If any such instrument is found
not to conform to the requirements of this Agreement in a material manner, the
Trustee or the Certificate Administrator, as applicable, shall take such action
as it deems appropriate to have the instrument corrected. Neither the Trustee
nor the Certificate Administrator shall be responsible for the accuracy or
content of any resolution, certificate, statement, opinion, report, document,
order or other instrument furnished by the Depositor or the Master Servicer or
the Special Servicer, and accepted by the Trustee or the Certificate
Administrator, as applicable, in good faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee or the Certificate Administrator from liability for its own negligent
action, its own negligent failure to act or its own misconduct; provided,
however, that:
(i) At all times with respect to the Certificate
Administrator, and prior to the occurrence of an Event of Default,
and after the curing of all such Events of Default which may have
occurred, with respect to the Trustee, the duties and obligations of
the Certificate Administrator and the Trustee shall be determined
solely by the express provisions of this Agreement, neither the
Trustee nor the Certificate Administrator shall 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 or the
Certificate Administrator and, in the absence of bad faith on the
part of the Trustee or the Certificate Administrator, the Trustee
and the Certificate Administrator 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 or the Certificate Administrator and conforming to the
requirements of this Agreement;
(ii) Neither the Trustee nor the Certificate Administrator
shall be personally liable for an error of judgment made in good
faith by a Responsible Officer or Responsible Officers of the
Trustee or Certificate Administrator, unless it shall be proved that
the Trustee or the Certificate Administrator was negligent in
ascertaining the pertinent facts if it was required to do so;
(iii) Neither the Trustee nor the Certificate Administrator
shall be personally liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance
with the direction of Holders of Certificates entitled to at least
25% of the Voting Rights relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee or
the Certificate Administrator or exercising any trust or power
conferred upon the Trustee or the Certificate Administrator, under
this Agreement, as holder of the Glendale Galleria Trust Mortgage
Loan, under the MLMT Series 2005-CKI1 Pooling and Servicing
Agreement, or as holder of A-Note Trust Mortgage Loans; and
(iv) The protections, immunities and indemnities afforded to
(a) the Certificate Administrator hereunder shall also be available
to it in its capacity as Authenticating Agent, Certificate Registrar
and REMIC Administrator, and (b) the Trustee shall also be available
to it in its capacity as Custodian.
SECTION 8.02. Certain Matters Affecting Trustee and the Certificate
Administrator.
Except as otherwise provided in Section 8.01 and Article X:
(i) the Trustee and the Certificate Administrator may, in the
absence of bad faith or negligence on the part of the Trustee or the
Certificate Administrator, conclusively rely upon and shall be fully
protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or document
reasonably believed by either the Trustee or the Certificate
Administrator to be genuine and to have been signed or presented by
the proper party or parties;
(ii) the Trustee and the Certificate Administrator may consult
with counsel and the 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 Certificate Administrator
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, except as provided in Section 10.01
or 10.02, to institute, conduct or defend any litigation hereunder
or in relation hereto at the request, order or direction of any of
the Certificateholders, pursuant to the provisions of this
Agreement, unless such Certificateholders shall have offered to the
Trustee or the Certificate Administrator reasonable security or
indemnity against the costs, expenses and liabilities which may be
incurred therein or thereby; except as provided in Section 10.01 or
10.02, neither the Trustee nor the Certificate Administrator 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; provided, however, that nothing contained
herein shall relieve the Trustee of the obligation, upon the
occurrence of an Event of Default which has not been cured, to
exercise such of the rights and powers vested in the Trustee
pursuant to 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 Certificate Administrator
shall be personally liable for any action reasonably taken, suffered
or omitted by it in good faith and believed by the Trustee or the
Certificate Administrator to be authorized or within the discretion
or rights or powers conferred upon it by this Agreement;
(v) neither the Certificate Administrator nor, prior to the
occurrence of an Event of Default hereunder and after the curing of
all Events of Default which may have occurred, the Trustee, and
except as may be provided in Section 10.01 or 10.02, shall be bound
to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or
document, unless requested in writing to do so by Holders of
Certificates entitled to at least 25% of the Voting Rights;
provided, however, that if the payment within a reasonable time to
the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the
opinion of the Trustee or the Certificate Administrator, not
reasonably assured to the Trustee or the Certificate Administrator
by the security afforded to it by the terms of this Agreement, the
Trustee or the Certificate Administrator, may require reasonable
indemnity against such expense or liability as a condition to taking
any such action;
(vi) the Trustee and the Certificate Administrator may execute
any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys;
provided, however, that the Trustee and the Certificate
Administrator, shall remain responsible for all acts and omissions
of such agents or attorneys within the scope of their employment to
the same extent as each is responsible for its own actions and
omissions hereunder;
(vii) neither the Trustee nor the Certificate Administrator
shall be responsible for any act or omission of the Master Servicer,
the Special Servicer (unless the Trustee is acting as Master
Servicer or the Special Servicer), the Depositor or any party to the
MLMT Series 2005-CKI1 Pooling and Servicing Agreement; and
(viii) none of the Trustee, the Certificate Administrator or
the Certificate Registrar shall have any obligation or duty to
monitor, determine or inquire as to compliance with any restriction
on transfer imposed under Article V under this Agreement or under
applicable law with respect to any transfer of any Certificate or
any interest therein, other than to require delivery of the
certification(s) and/or Opinions of Counsel described in said
Article applicable with respect to changes in registration of record
ownership of Certificates in the Certificate Register and to examine
the same to determine substantial compliance with the express
requirements of this Agreement. None of the Trustee, the Certificate
Administrator or the Certificate Registrar shall have any liability
for transfers, including transfers made through the book entry
facilities of the Depository or between or among Depository
Participants or beneficial owners of the Certificates, made in
violation of applicable restrictions except for its failure to
perform its express duties in connection with changes in
registration of record ownership in the Certificate Register.
Whenever in the administration of the provisions of this Agreement
the Trustee or the Certificate Administrator shall deem it necessary or
desirable that a matter be proved or established prior to taking or suffering
any action to be taken hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of negligence or
bad faith on the part of the Trustee or the Certificate Administrator, be deemed
to be conclusively proved and established by an Officer's Certificate delivered
to the Certificate Administrator and such certificate, in the absence of
negligence or bad faith on the part of the Trustee or the Certificate
Administrator, shall be full warrant to the Trustee and the Certificate
Administrator for any action taken, suffered or omitted by either under the
provisions of this Agreement upon the faith thereof.
SECTION 8.03. Trustee and Certificate Administrator Not Liable for
Validity or Sufficiency of Certificates or Mortgage
Loans.
The recitals contained herein and in the Certificates, other than
the statements attributed to the Trustee in Article II and Section 8.15 and the
signature of the Certificate Registrar and the Authenticating Agent set forth on
each outstanding Certificate, shall be taken as the statements of the Depositor
or the Master Servicer or the Special Servicer, as the case may be, and neither
the Trustee nor the Certificate Administrator assumes any responsibility for
their correctness. Except as set forth in Section 8.15, the Trustee and the
Certificate Administrator make no representations as to the validity or
sufficiency of this Agreement or of any Certificate (other than as to the
signature of the Trustee set forth thereon) or of any Mortgage Loan or related
document. Neither the Trustee nor the Certificate Administrator 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 Trust Mortgage Loans to the Trust Fund, or any funds deposited
in or withdrawn from the Collection Account or any other account by or on behalf
of the Depositor, the Master Servicer or the Special Servicer. Neither the
Trustee nor the Certificate Administrator shall 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 Certificate Administrator,
in good faith, pursuant to this Agreement.
SECTION 8.04. Trustee and Certificate Administrator May Own
Certificates.
The Trustee, the Certificate Administrator or any agent of the
Trustee or the Certificate Administrator, in its individual or any other
capacity, may become the owner or pledgee of Certificates with the same rights
(except as otherwise provided in the definition of "Certificateholder") it would
have if it were not the Trustee, the Certificate Administrator, or such agent.
SECTION 8.05. Fees and Expenses of Trustee and Certificate
Administrator; Indemnification of and by Trustee and
Certificate Administrator.
(a) On each Distribution Date, the Certificate Administrator shall
withdraw from the general funds on deposit in the Distribution Account as
provided in Section 3.05(b), prior to any distributions to be made therefrom on
such date, and pay to itself and the Trustee all earned but unpaid Certificate
Administrator Fees and Trustee Fees for such Distribution Date and, to the
extent not previously paid, for all prior Distribution Dates, as compensation
for all services rendered by it and the Trustee in the execution of the trusts
hereby created and in the exercise and performance of any of the powers and
duties of the Trustee or the Certificate Administrator hereunder. As
compensation for their respective services, the Trustee will be paid the Trustee
Fee and the Certificate Administrator will be paid a portion of that Trustee
Fee. Except as contemplated by Section 3.06, a portion of the Trustee Fee (which
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) shall constitute the Trustee's sole compensation
for such services to be rendered by it.
(b) The Trustee, the Certificate Administrator and any director,
officer, employee, affiliate, agent or "control" person within the meaning of
the Securities Act of 1933, as amended, of the Trustee and the Certificate
Administrator shall be entitled to be indemnified for and held harmless by the
Trust Fund out of the Collection Account (and, to the extent that any Loan
Combination and/or any related REO Property is affected, by the Trust Fund
and/or the related Non-Trust Noteholder(s) out of the related Loan Combination
Custodial Account) against any loss, liability or reasonable "out-of-pocket"
expense (including, without limitation, costs and expenses of litigation, and of
investigation, counsel fees, damages, judgments and amounts paid in settlement)
arising out of, or incurred in connection with this Agreement, the Mortgage
Loans or the Certificates or any act of the Master Servicer or the Special
Servicer taken on behalf of the Trustee or the Certificate Administrator as
provided for herein, provided that such expense constitutes an "unanticipated
expense" within the meaning of Treasury Regulations Section 1.860G-1(b)(3)(ii);
and provided, further, that none of the Trustee, the Certificate Administrator
or any of the other above specified Persons shall be entitled to indemnification
pursuant to this Section 8.05(b) for (1) any liability specifically required to
be borne thereby pursuant to the terms hereof, (2) any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or negligence in
the performance of the Trustee's or the Certificate Administrator's obligations
and duties hereunder, or by reason of its negligent disregard of such
obligations and duties, or as may arise from a breach of any representation,
warranty or covenant of the Trustee or the Certificate Administrator made
herein, or (3) any loss, liability or expense that constitutes an Advance (the
reimbursement of which is separately addressed herein) or allocable overhead.
The provisions of this Section 8.05(b) shall survive any resignation or removal
of the Trustee or the Certificate Administrator and appointment of a successor
thereto.
SECTION 8.06. Eligibility Requirements for Trustee and Certificate
Administrator.
Each of the Trustee and the Certificate Administrator hereunder
shall at all times be an association, a bank, a trust company or a corporation
organized and doing business under the laws of the United States of America or
any State thereof or the District of Columbia, authorized under such laws to
exercise trust powers, having a combined capital and surplus of at least
$100,000,000 and subject to supervision or examination by a federal or state
banking authority. If such association, bank, trust company or corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section the combined capital and surplus of such association,
bank, trust company or corporation shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.
Each of the Trustee and the Certificate Administrator shall also be an entity
with a long term unsecured debt rating of at least "A+" from S&P and "Aa3" from
Xxxxx'x, or such other rating that shall not result in an Adverse Rating Event
as confirmed in writing.
In case at any time the Trustee or the Certificate Administrator
shall cease to be eligible in accordance with the provisions of this Section,
the Trustee or the Certificate Administrator, as applicable, shall resign
immediately in the manner and with the effect specified in Section 8.07;
provided that if the Trustee or the Certificate Administrator shall cease to be
so eligible because its combined capital and surplus is no longer at least
$100,000,000 or its long-term unsecured debt rating no longer conforms to the
requirements of the immediately preceding sentence, and if the Trustee or the
Certificate Administrator, as applicable, proposes to the other parties hereto
to enter into an agreement with (and reasonably acceptable to) each of them, and
if in light of such agreement the Trustee's or the Certificate Administrator's,
as applicable, continuing to act in such capacity would not (as evidenced in
writing by each Rating Agency) result in an Adverse Rating Event, then upon the
execution and delivery of such agreement the Trustee or the Certificate
Administrator, as applicable, shall not be required to resign, and may continue
in such capacity, for so long as no Adverse Rating Event occurs as a result of
the Trustee's or the Certificate Administrator's, as applicable, continuing in
such capacity. The bank, trust company, corporation or association serving as
Trustee may have normal banking and trust relationships with the Depositor, the
Master Servicer, the Special Servicer and their respective Affiliates but,
except to the extent permitted or required by Section 7.02, shall not be an
"Affiliate" (as such term is defined in Section III of PTE 2000-58) of the
Master Servicer, the Special Servicer, any sub-servicer, the Depositor, or any
obligor with respect to Trust Mortgage Loans constituting more than 5.0% of the
aggregate authorized principal balance of the Trust Mortgage Loans as of the
date of the initial issuances of the Certificates or any "Affiliate" (as such
term is defined in Section III of PTE 2000-58) of any such person.
SECTION 8.07. Resignation and Removal of Trustee or Certificate
Administrator.
(a) The Trustee or the Certificate Administrator may at any time
resign and be discharged from the trusts hereby created by giving written notice
thereof to the Depositor, the Master Servicer, the Special Servicer, to all
Certificateholders at their respective addresses set forth in the Certificate
Register. Upon receiving such notice of resignation from the Trustee, the
Depositor shall promptly appoint a successor trustee meeting the requirements in
Section 8.06 and acceptable to the Rating Agencies by written instrument, in
duplicate, which instrument shall be delivered to the resigning Trustee, and to
the successor trustee. A copy of such instrument shall be delivered to the
Master Servicer, the Special Servicer and the Certificateholders. Upon receiving
a notice of resignation from the Certificate Administrator, the Trustee shall
promptly appoint a successor certificate administrator meeting the requirements
in Section 8.06(a). If no successor trustee or successor certificate
administrator shall have been so appointed and have accepted appointment within
30 days after the giving of such notice of resignation, the resigning Trustee
may petition any court of competent jurisdiction for the appointment of a
successor trustee or successor certificate administrator. The resigning Trustee
or Certificate Administrator shall be responsible for the payment of all
reasonable expenses incurred in connection with such resignation and discharge
and the appointment of a successor trustee or successor certificateholder.
(b) If at any time the Trustee or the Certificate Administrator
ceases to be eligible in accordance with the provisions of Section 8.06 and
fails to resign after written request therefor by the Depositor or the Master
Servicer, or if at any time the Trustee or the Certificate Administrator becomes
incapable of acting, or is adjudged bankrupt or insolvent, or a receiver of the
Trustee or the Certificate Administrator or of the Trustee's or the Certificate
Administrator's property is appointed, or any public officer takes charge or
control of the Trustee or the Certificate Administrator or of the Trustee's or
the Certificate Administrator's property or affairs for the purpose of
rehabilitation, conservation or liquidation, or if the Trustee or the
Certificate Administrator fails (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 the
Certificate Administrator's reasonable control), to timely deliver any report to
be delivered by the Certificate Administrator pursuant to Section 4.02 and such
failure shall continue unremedied for a period of five days, or if the
Certificate Administrator fails to make distributions required pursuant to
Section 3.05(b), 4.01 or 9.01, then the Depositor may remove the Trustee or the
Certificate Administrator and appoint a successor trustee or successor
certificate administrator, if necessary, acceptable to the Rating Agencies (as
evidenced by written confirmation therefrom to the effect that the appointment
of such institution would not cause an Adverse Rating Event) by written
instrument, in duplicate, which instrument shall be delivered to the Trustee or
the Certificate Administrator so removed and to the successor trustee or the
successor certificate administrator. 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 or the Certificate
Administrator and appoint a successor trustee or successor certificate
administrator, if necessary, by written instrument or instruments, in
triplicate, signed by such Holders or their attorneys-in-fact duly authorized,
one complete set of which instruments shall be delivered to the Master Servicer,
one complete set to the Trustee or the Certificate Administrator so removed and
one complete set to the successor trustee or the successor certificate
administrator so appointed. A copy of such instrument shall be delivered to the
Depositor, the Special Servicer and the remaining Certificateholders by the
successor trustee so appointed.
(d) In the event that the Trustee or the Certificate Administrator
is terminated or removed pursuant to this Section 8.07, all of its rights and
obligations under this Agreement and in and to the Mortgage Loans shall be
terminated, other than any rights or obligations that accrued prior to the date
of such termination or removal (including the right to receive all fees,
expenses and other amounts (including, without limitation, P&I Advances and
accrued interest thereon) accrued or owing to it under this Agreement, with
respect to periods prior to the date of such termination or removal and no
termination without cause shall be effective until the payment of such amounts
to the Trustee or the Certificate Administrator).
(e) Any resignation or removal of the Trustee or the Certificate
Administrator and appointment of a successor trustee or successor certificate
administrator, pursuant to any of the provisions of this Section 8.07 shall not
become effective until acceptance of appointment by the successor trustee or
successor certificate administrator, as applicable, as provided in Section 8.08.
SECTION 8.08. Successor Trustee or Successor Certificate
Administrator.
(a) Any successor trustee or successor certificate administrator
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 predecessor Certificate Administrator, an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee or predecessor Certificate Administrator shall become
effective and such successor trustee or successor certificate administrator,
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 Certificate Administrator
herein. The predecessor Trustee or the predecessor Certificate Administrator
shall deliver to the successor trustee or the successor certificate
administrator, as appropriate, all Mortgage Files and related documents and
statements held by it hereunder (other than any Mortgage Files at the time held
on its behalf by a third-party Custodian, which Custodian shall become the agent
of the successor trustee or the successor administrator), and the Depositor, the
Master Servicer, the Special Servicer and the predecessor Trustee or predecessor
Certificate Administrator 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 or the successor certificate administrator all
such rights, powers, duties and obligations, and to enable the successor trustee
or the successor administrator to perform its obligations hereunder.
(b) No successor trustee or successor certificate administrator
shall accept appointment as provided in this Section 8.08, unless at the time of
such acceptance such successor trustee or successor certificate administrator
shall be eligible under the provisions of Section 8.06 and the Rating Agencies
have provided confirmation pursuant to such Section.
(c) Upon acceptance of appointment by a successor trustee or
successor certificate administrator as provided in this Section 8.08, such
successor trustee or successor certificate administrator shall mail notice of
the succession of such trustee or certificate administrator hereunder to the
Depositor, the Certificateholders and each Non-Trust Noteholder.
SECTION 8.09. Merger or Consolidation of Trustee or Certificate
Administrator.
Any entity into which the Trustee or the Certificate Administrator
may be merged or converted or with which it may be consolidated or any entity
resulting from any merger, conversion or consolidation to which the Trustee or
the Certificate Administrator is a party, or any entity succeeding to the
corporate trust business of the Trustee or the Certificate Administrator, shall
be the successor of the Trustee or the Certificate Administrator hereunder,
provided such entity shall be eligible under the provisions of Section 8.06 and
the Rating Agencies have provided confirmation pursuant to such Section, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing the same may at the time be located,
the Master Servicer and the Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity, such title
to the Trust Fund, or any part thereof, and, subject to the other provisions of
this Section 8.10, such powers, duties, obligations, rights and trusts as the
Master Servicer and the Trustee may consider necessary or desirable. If the
Master Servicer shall not have joined in such appointment within 15 days after
the receipt by it of a request to do so, or in case an Event of Default in
respect of the Master Servicer shall have occurred and be continuing, the
Trustee alone shall have the power to make such appointment. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility as
a successor trustee under Section 8.06 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be
required under Section 8.08 hereof.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Master Servicer or the Special Servicer
hereunder), the Trustee shall be incompetent or unqualified to perform such act
or acts, in which event such rights, powers, duties and obligations (including
the holding of title to the Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall cease to exist, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall vest
in and be exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
SECTION 8.11. Appointment of Custodians.
The Trustee may appoint at the Trustee's expense one or more
Custodians to hold all or a portion of the Mortgage Files as agent for the
Trustee. Each Custodian shall be a depository institution supervised and
regulated by a federal or state banking authority, shall have combined capital
and surplus of at least $10,000,000, shall be qualified to do business in the
jurisdiction in which it holds any Mortgage File and shall not be the Depositor,
any Mortgage Loan Seller or any Affiliate of the Depositor or any Mortgage Loan
Seller. Neither the Master Servicer nor the Special Servicer shall have any duty
to verify that any such Custodian is qualified to act as such in accordance with
the preceding sentence. Any such appointment of a third party Custodian and the
acceptance thereof shall be pursuant to a written agreement, which written
agreement shall (i) be consistent with this Agreement in all material respects
and requires the Custodian to comply with this Agreement in all material
respects and requires the Custodian to comply with all of the applicable
conditions of this Agreement; (ii) provide that if the Trustee shall for any
reason no longer act in the capacity of Trustee hereunder (including, without
limitation, by reason of an Event of Default), the successor trustee or its
designee may thereupon assume all of the rights and, except to the extent such
obligations arose prior to the date of assumption, obligations of the Custodian
under such agreement or alternatively, may terminate such agreement without
cause and without payment of any penalty or termination fee; and (iii) not
permit the Custodian any rights of indemnification that may be satisfied out of
assets of the Trust Fund. The appointment of one or more Custodians shall not
relieve the Trustee from any of its obligations hereunder, and the Trustee shall
remain responsible and liable for all acts and omissions of any Custodian. In
the absence of any other Person appointed in accordance herewith acting as
Custodian, the Trustee agrees to act in such capacity in accordance herewith.
The initial Custodian shall be the Trustee. Notwithstanding anything herein to
the contrary, if the Trustee is no longer the Custodian, any provision or
requirement herein requiring notice or any information or documentation to be
provided to the Custodian shall be construed to require that such notice,
information or documents also be provided to the Trustee. Any Custodian
hereunder (other than the Trustee) shall at all times maintain a fidelity bond
and errors and omissions policy in amounts customary for custodians performing
duties similar to those set forth in this Agreement.
SECTION 8.12. Appointment of Authenticating Agents.
(a) The Certificate Administrator may at the Certificate
Administrator's expense appoint one or more Authenticating Agents, which shall
be authorized to act on behalf of the Certificate Administrator in
authenticating Certificates. The Certificate Administrator shall cause any such
Authenticating Agent to execute and deliver to the Certificate Administrator an
instrument in which such Authenticating Agent shall agree to act in such
capacity, in accordance with the obligations and responsibilities herein. Each
Authenticating Agent must be organized and doing business under the laws of the
United States of America or of any State, authorized under such laws to do a
trust business, have a combined capital and surplus of at least $15,000,000, and
be subject to supervision or examination by federal or state authorities. Each
Authenticating Agent shall be subject to the same obligations, standard of care,
protection and indemnities as would be imposed on, or would protect, the
Certificate Administrator hereunder. The appointment of an Authenticating Agent
shall not relieve the Certificate Administrator from any of its obligations
hereunder, and the Certificate Administrator shall remain responsible and liable
for all acts and omissions of the Authenticating Agent. If LaSalle Bank National
Association is removed as Certificate Administrator, then it shall be terminated
as Authenticating Agent. If the Authenticating Agent (other than LaSalle Bank
National Association) resigns or is terminated, the Certificate Administrator
shall appoint a successor Authenticating Agent which may be the Certificate
Administrator or an Affiliate thereof. In the absence of any other Person
appointed in accordance herewith acting as Authenticating Agent, the Certificate
Administrator hereby agrees to act in such capacity in accordance with the terms
hereof. Notwithstanding anything herein to the contrary, if the Certificate
Administrator is no longer the Authenticating Agent, any provision or
requirement herein requiring notice or any information or documentation to be
provided to the Authenticating Agent shall be construed to require that such
notice, information or documentation also be provided to the Certificate
Administrator.
(b) Any Person into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any Authenticating Agent shall be
a party, or any Person succeeding to the corporate agency business of any
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the
Certificate Administrator or the Authenticating Agent.
(c) Any Authenticating Agent may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee, the
Certificate Administrator, the Certificate Registrar, the Master Servicer, the
Special Servicer and the Depositor. The Certificate Administrator may at any
time terminate the agency of any Authenticating Agent by giving written notice
of termination to such Authenticating Agent, the Trustee, Certificate
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 Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section 8.12, the Certificate Administrator may appoint a
successor Authenticating Agent, in which case the Certificate Administrator
shall give written notice of such appointment to the Master Servicer, the
Trustee, the Certificate Administrator, the Certificate Registrar and the
Depositor and shall mail notice of such appointment to all Holders of
Certificates; provided, however, that no successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section 8.12. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers, duties and responsibilities of
its predecessor hereunder, with like effect as if originally named as
Authenticating Agent. No Authenticating Agent shall have responsibility or
liability for any action taken by it as such at the direction of the Certificate
Administrator.
SECTION 8.13. Access to Certain Information.
The Trustee and the Certificate Administrator shall afford to the
Master Servicer, the Special Servicer, each Rating Agency and the Depositor, to
any Certificateholder or Certificate Owner and to the OTS, the FDIC and any
other banking or insurance regulatory authority that may exercise authority over
any Certificateholder, access to any documentation regarding the Mortgage Loans
within its control that may be required to be provided by this Agreement or by
applicable law. Such access shall be afforded without charge but only upon
reasonable prior written request and during normal business hours at the offices
of the Trustee designated by it. Upon request and with the consent of the
Depositor and at the cost of the requesting Party, the Trustee and the
Certificate Administrator shall provide copies of such documentation to the
Depositor, any Certificateholder and to the OTS, the FDIC and any other bank or
insurance regulatory authority that may exercise authority over any
Certificateholder.
SECTION 8.14. Appointment of REMIC Administrators.
(a) The Trustee may appoint at the Trustee's expense, one or more
REMIC Administrators, which shall be authorized to act on behalf of the Trustee
in performing the functions set forth in Sections 3.17, 10.01 and 10.02 herein.
The Trustee shall cause any such REMIC Administrator to execute and deliver to
the Trustee an instrument in which such REMIC Administrator shall agree to act
in such capacity, with the obligations and responsibilities herein. The
appointment of a REMIC Administrator shall not relieve the Trustee from any of
its obligations hereunder, and the Trustee shall remain responsible and liable
for all acts and omissions of the REMIC Administrator. Each REMIC Administrator
must be acceptable to the Trustee and must be organized and doing business under
the laws of the United States of America or of any State and be subject to
supervision or examination by federal or state authorities. In the absence of
any other Person appointed in accordance herewith acting as REMIC Administrator,
the Trustee hereby agrees to act in such capacity in accordance with the terms
hereof. The Trustee hereby appoints LaSalle Bank National Association as
Certificate Administrator to be the REMIC Administrator. If LaSalle Bank
National Association is removed as Certificate Administrator, then it shall be
terminated as REMIC Administrator.
(b) Any Person into which any REMIC Administrator may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any REMIC Administrator shall be a
party, or any Person succeeding to the corporate agency business of any REMIC
Administrator, shall continue to be the REMIC Administrator without the
execution or filing of any paper or any further act on the part of the Trustee
or the REMIC Administrator.
(c) Any REMIC Administrator may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee, the
Certificate Administrator, the Certificate Registrar, the Master Servicer, the
Special Servicer and the Depositor. The Trustee may at any time terminate the
agency of any REMIC Administrator by giving written notice of termination to
such REMIC Administrator, the Master Servicer, the Certificate Administrator,
the Certificate Registrar and the Depositor. Upon receiving a notice of
resignation or upon such a termination, or in case at any time any REMIC
Administrator shall cease to be eligible in accordance with the provisions of
this Section 8.14, the Trustee may appoint a successor REMIC Administrator, in
which case the Trustee shall give written notice of such appointment to the
Master Servicer and the Depositor and shall mail notice of such appointment to
all Holders of Certificates; provided, however, that no successor REMIC
Administrator shall be appointed unless eligible under the provisions of this
Section 8.14. Any successor REMIC Administrator upon acceptance of its
appointment hereunder shall become vested with all the rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as REMIC Administrator. No REMIC Administrator shall have
responsibility or liability for any action taken by it as such at the direction
of the Trustee.
SECTION 8.15. Representations, Warranties and Covenants of Trustee.
The Trustee hereby represents and warrants to the Certificate
Administrator, the Master Servicer, the Special Servicer and the Depositor and
for the benefit of the Certificateholders, as of the Closing Date, that:
(a) The Trustee is a national banking association duly organized,
validly existing and in good standing under the laws of the United States.
(b) The execution and delivery of this Agreement by the Trustee, and
the performance and compliance with the terms of this Agreement by the Trustee,
will not violate the Trustee's organizational documents or constitute a default
(or an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in a material breach of, any material agreement or
other material instrument to which it is a party or by which it is bound.
(c) Except to the extent that the laws of certain jurisdictions in
which any part of the Trust Fund may be located require that a co-trustee or
separate trustee be appointed to act with respect to such property as
contemplated by Section 8.10, the Trustee has the full power and authority to
carry on its business as now being conducted and to enter into and consummate
all transactions contemplated by this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly executed and
delivered this Agreement.
(d) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and binding
obligation of the Trustee, enforceable against the Trustee in accordance with
the terms hereof (including with respect to any advancing obligations
hereunder), subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally and the rights of creditors of banks, and (B) general principles of
equity, regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(e) The Trustee is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the terms of
this Agreement will not constitute a violation of, any law, any order or decree
of any court or arbiter, or any order, regulation or demand of any federal,
state or local governmental or regulatory authority, which violation, in the
Trustee's good faith reasonable judgment, is likely to affect materially and
adversely the ability of the Trustee to perform its obligations under this
Agreement.
(f) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee that, if determined adversely to the
Trustee, would prohibit the Trustee from entering into this Agreement or, in the
Trustee's good faith reasonable judgment, is likely to materially and adversely
affect the ability of the Trustee to perform its obligations under this
Agreement.
(g) Any consent, approval, authorization or order of any court or
governmental agency or body required for the execution, delivery and performance
by the Trustee of or compliance by the Trustee with this Agreement or the
consummation of the transactions contemplated by this Agreement has been
obtained and is effective.
(h) The Trustee is a "Qualified Trustee" under the Glendale Galleria
Intercreditor Agreement.
SECTION 8.16. Representations, Warranties and Covenants of
Certificate Administrator.
The Certificate Administrator hereby represents and warrants to the
Trustee, the Master Servicer, the Special Servicer and the Depositor and for the
benefit of the Certificateholders, as of the Closing Date, that:
(a) The Certificate Administrator is a national banking association
duly organized, validly existing and in good standing under the laws of the
United States.
(b) The execution and delivery of this Agreement by the Certificate
Administrator, and the performance and compliance with the terms of this
Agreement by the Certificate Administrator, will not violate the Certificate
Administrator's organizational documents or constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default) under,
or result in a material breach of, any material agreement or other material
instrument to which it is a party or by which it is bound.
(c) The Certificate Administrator has the full power and authority
to carry on its business as now being conducted and to enter into and consummate
all transactions contemplated by this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly executed and
delivered this Agreement.
(d) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and binding
obligation of the Certificate Administrator, enforceable against the Certificate
Administrator in accordance with the terms hereof (including with respect to any
advancing obligations hereunder), subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the enforcement
of creditors' rights generally and the rights of creditors of banks, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(e) The Certificate Administrator 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 Certificate Administrator's good faith reasonable judgment, is
likely to affect materially and adversely the ability of the Certificate
Administrator to perform its obligations under this Agreement.
(f) No litigation is pending or, to the best of the Certificate
Administrator's knowledge, threatened against the Certificate Administrator
that, if determined adversely to the Certificate Administrator, would prohibit
the Certificate Administrator from entering into this Agreement or, in the
Certificate Administrator's good faith reasonable judgment, is likely to
materially and adversely affect the ability of the Certificate Administrator to
perform its obligations under this Agreement.
(g) Any consent, approval, authorization or order of any court or
governmental agency or body required for the execution, delivery and performance
by the Certificate Administrator of or compliance by the Certificate
Administrator with this Agreement or the consummation of the transactions
contemplated by this Agreement has been obtained and is effective.
SECTION 8.17. Reports to the Securities and Exchange Commission.
(a) With respect to the Trust's fiscal year 2005 (and any other
subsequent fiscal year for the Trust, if as of the beginning of such other
subsequent fiscal year for the Trust, the Registered Certificates are held
(directly or, in the case of Registered Certificates held in book-entry form,
through the Depository) by at least 300 Holders and/or Depository Participants
having accounts with the Depository, or if reporting under the Exchange Act is
required during or for, as applicable, such fiscal year because the Certificate
Administrator failed to make the requisite filing suspending such reporting),
the Certificate Administrator shall:
(i) with respect to each Distribution Date during such fiscal
year, in accordance with the Exchange Act, the rules and regulations
promulgated thereunder and applicable "no-action letters" issued by
the Securities and Exchange Commission, prepare for filing, execute
on behalf of the Trust and properly and timely file with the
Securities and Exchange Commission (A) monthly, with respect to the
Trust, a Form 8-K Current Report, which shall include as an exhibit
a copy of the Certificate Administrator Report disseminated by the
Certificate Administrator on such Distribution Date and such other
items as the Depositor may reasonably request and (B) upon direction
of the Depositor, a Form 8-K Current Report regarding and disclosing
(I) those events specified under Section 8.17(c) (to the extent a
Responsible Officer of the Certificate Administrator has actual
knowledge of, or has been provided with written notice of, such
event) and (II) any other events occurring with respect to the Trust
that are required to be reported pursuant to Form 8-K (to the extent
a Responsible Officer of the Certificate Administrator has actual
knowledge of, or has been provided with written notice of, such
event), in the case of (A) and (B), within the time periods
specified under Form 8-K, the Exchange Act, the rules and
regulations promulgated thereunder and applicable releases and
"no-action letters"; provided that, the Depositor shall cooperate
with the Certificate Administrator to determine the applicable
required time period;
(ii) during such fiscal year, (A) monitor for and promptly
notify the Depositor in writing of the occurrence or existence of
any of the matters identified in Section 11.11(a), Section 8.17(c)
and/or Section 8.17(a)(i)(B)(II) (in each case to the extent that a
Responsible Officer of the Certificate Administrator has actual
knowledge thereof), and (B) promptly notify the Depositor in writing
that the filing of a Form 8-K Current Report may be required with
respect to any of the matters under clause (ii)(A) above, and
consult with the Depositor regarding whether to prepare and file a
Form 8-K Current Report under Section 8.17(a)(i)(B) above with
respect to such matters (and the Certificate Administrator shall be
entitled to rely on a written direction of the Depositor with regard
to whether to make such filing); provided that, if the Depositor
directs the Certificate Administrator to file a Form 8-K Current
Report with respect to such matters, the Depositor shall cooperate
with the Certificate Administrator in obtaining all necessary
information in order to enable the Depositor to prepare such Form
8-K Current Report and the Certificate Administrator shall report
any such matter in accordance with the Exchange Act, the rules and
regulations promulgated thereunder and applicable releases and
"no-action letters" issued by the Securities and Exchange
Commission;
(iii) at the reasonable request of, and in accordance with the
reasonable directions of, any other party hereto, prepare for filing
and promptly file with the Securities and Exchange Commission an
amendment to any Form 8-K Current Report previously filed with the
Securities and Exchange Commission with respect to the Trust; and
(iv) within 90 days following the end of such fiscal year,
prepare and properly file with the Securities and Exchange
Commission, with respect to the Trust, a Form 10-K Annual Report,
which complies in all material respects with the requirements of the
Exchange Act, the rules and regulations promulgated thereunder and
applicable "no-action letters" issued by the Securities and Exchange
Commission, which shall include as exhibits the Officer's
Certificates and Accountant's Statements delivered pursuant to
Section 3.13 and Section 3.14, respectively, with respect to the
Master Servicer and the Special Servicer for such fiscal year, and
which shall further include a certification in the form attached
hereto as Exhibit O (a "Xxxxxxxx-Xxxxx Certification") (or in such
other form as required by the Xxxxxxxx-Xxxxx Act of 2002, and the
rules and regulations of the Securities and Exchange Commission
promulgated thereunder (including any interpretations thereof by the
Securities and Exchange Commission's staff)), which Xxxxxxxx-Xxxxx
Certification shall be signed by an officer of the Depositor as
contemplated by this Section 8.17;
provided that (x) the Certificate Administrator shall not have any
responsibility to file any items (other than those generated by it) that have
not been received in a format suitable for (or readily convertible to a format
suitable for) electronic filing via the XXXXX system (such suitable formats
including "ASCII," "Microsoft Excel" (solely in the case of reports from the
Master Servicer or the Special Servicer pursuant to Section 3.12), "Microsoft
Word" or another format reasonably acceptable to the Certificate Administrator)
and shall not have any responsibility to convert any such items to such format
(other than those items generated by it or readily convertible to such format)
and (y) the Depositor shall be responsible for preparing, executing and filing
(via the XXXXX system within 15 days following the Closing Date) a Form 8-K
Current Report reporting the establishment of the Trust and whereby this
Agreement is filed as an exhibit. Each of the other parties to this Agreement
shall deliver to the Certificate Administrator in the format required for (or
readily convertible to a format suitable for) electronic filing via the XXXXX
system (such suitable formats including "ASCII," "Microsoft Excel" (solely in
the case of reports from the Master Servicer or the Special Servicer pursuant to
Section 3.12), "Microsoft Word" or another format reasonably acceptable to the
Certificate Administrator) any and all items contemplated to be filed with the
Securities and Exchange Commission pursuant to this Section 8.17(a).
The Certificate Administrator shall have no liability to
Certificateholders or the Trust with respect to any failure to properly prepare
or file with the Securities and Exchange Commission any of the reports under the
Exchange Act contemplated by this Section 8.17(a) to the extent that such
failure did not result from any negligence, bad faith or willful misconduct on
the part of the Certificate Administrator.
(b) All Form 10-K Annual Reports with respect to the Trust shall
include a Xxxxxxxx-Xxxxx Certification, in so far as it is required to be part
of any particular Form 10-K Annual Report. An officer of the Depositor shall
sign the Xxxxxxxx-Xxxxx Certification. The Depositor hereby grants to the
Certificate Administrator a limited power of attorney to execute and file such
Form 10-K Annual Report on behalf of the Depositor, which power of attorney
shall continue until the earlier of (i) receipt by the Certificate Administrator
from the Depositor of written notice terminating such power of attorney or (ii)
the termination of the Trust. The Master Servicer, the Special Servicer (who
shall also certify to the Master Servicer), the Trustee and the Certificate
Administrator (each, a "Performing Party") shall provide a certification (each,
a "Performance Certification"), to the Person who signs the Xxxxxxxx-Xxxxx
Certification or, in the case of the Master Servicer, who relies on the Special
Servicer's Performance Certification (in each case, the "Certifying Person") in
the form set forth on Exhibit P-1 hereto (with respect to the Master Servicer;
except that in respect of a Performance Certification delivered by the Master
Servicer in connection with a Form 10-K Annual Report filed for the year ended
2005, the Master Servicer shall be required to certify only as to paragraph 4
thereof), Exhibit P-2 hereto (with respect to the Trustee), or Exhibit P-3
hereto (with respect to the Special Servicer's certification to the Certifying
Person of the Depositor), or Exhibit P-4 hereto (with respect to the Certificate
Administrator), as applicable, on which the Certifying Person, the Depositor (if
the Certifying Person is an individual), and each partner, representative,
Affiliate, member, manager, shareholder, director, officer, employee and agent
of the Depositor or the Master Servicer (collectively with the Certifying
Person, "Certification Parties") can rely. Notwithstanding the foregoing,
nothing in this paragraph shall require any Performing Party to (i) certify or
verify the accurateness or completeness of any information provided to such
Performing Party by third parties, (ii) to certify information other than to
such Performing Party's knowledge and in accordance with such Performing Party's
responsibilities hereunder or under any other applicable servicing agreement or
(iii) with respect to completeness of information and reports, to certify
anything other than that all fields of information called for in written reports
prepared by such Performing Party have been completed except as they have been
left blank on their face. In addition, with respect to any report regarding one
or more Specially Serviced Mortgage Loans, the Special Servicer shall not be
required to include in any such report prepared by it specific detailed
information related to the status or nature of any workout negotiations with the
related Mortgagor with respect to such Mortgage Loan or any facts material to
the position of the Trust (or, in the case of a Loan Combination, the position
of the Trust and the related Non-Trust Noteholder(s)) in any such negotiations
if (A) the Special Servicer determines, in its reasonable judgment in accordance
with the Servicing Standard, that stating such information in such report would
materially impair the interests of the Trust (or, in the case of a Loan
Combination, the interest of the Trust and the related Non-Trust Noteholder(s))
in such negotiations, and (B) the Special Servicer included in such report a
general description regarding the status of the subject Mortgage Loan and an
indication that workout negotiations were ongoing. In addition, if directed by
the Depositor, such Performing Party (other than the Certificate Administrator
and the Trustee) shall provide to Depositor's certified public accountants a
certification identical to the certification that such Performing Party provided
to its own certified public accountants to the extent such certification relates
to the performance of such Performing Party's duties pursuant to this Agreement
or a modified certificate limiting the certification therein to the performance
of such Performing Party's duties pursuant to this Agreement. In the event any
Performing Party is terminated or resigns pursuant to the terms of this
Agreement, such Performing Party shall provide a Performance Certification to
the Master Servicer (if the terminated or resigning Performing Party is the
Special Servicer) or the Depositor pursuant to this Section 8.17 with respect to
the period of time such Performing Party was subject to this Agreement.
(c) At all times during the Trust's fiscal year 2005 (and, if as of
the beginning of any other fiscal year for the Trust, the Registered
Certificates are held (directly or, in the case of Registered Certificates held
in book-entry form, through the Depository) by at least 300 Holders and/or
Depository Participants having accounts with the Depository, or if reporting
under the Exchange Act is required during or for, as applicable, any other
fiscal year because the Certificate Administrator failed to make the requisite
filing suspending such reporting, at all times during such other fiscal year),
the Certificate Administrator and Trustee shall monitor for and promptly notify
the Depositor of the occurrence or existence of any of the following matters of
which a Responsible Officer of the Certificate Administrator or Trustee has
actual knowledge:
(i) any failure of the Certificate Administrator to make any
monthly distributions to the Holders of any Class of Certificates,
which failure is not otherwise reflected in the Certificateholder
Reports filed with the Securities and Exchange Commission or has not
otherwise been reported to the Depositor pursuant to any other
section of this Agreement;
(ii) any acquisition or disposition by the Trust of a Trust
Mortgage Loan or an REO Property, which acquisition or disposition
has not otherwise been reflected in the Certificateholder Reports
filed with the Securities and Exchange Commission or has not
otherwise been reported to the Depositor pursuant to any other
section of this Agreement;
(iii) any other acquisition or disposition by the Trust of a
significant amount of assets (other than Permitted Investments,
Trust Mortgage Loans and REO Properties), other than in the normal
course of business;
(iv) any change in the fiscal year of the Trust;
(v) any material legal proceedings, other than ordinary
routine litigation incidental to the business of the Trust, to which
the Trust (or any party to this Agreement on behalf of the Trust) is
a party or of which any property included in the Trust Fund is
subject, or any threat by a governmental authority to bring any such
legal proceedings;
(vi) any event of bankruptcy, insolvency, readjustment of
debt, marshalling of assets and liabilities, or similar proceedings
in respect of or pertaining to the Trust or any party to this
Agreement, or any actions by or on behalf of the Trust or any party
to this Agreement indicating its bankruptcy, insolvency or inability
to pay its obligations;
(vii) any adverse change in the rating or ratings assigned to
any Class of Certificates not otherwise reflected in the
Certificateholder Reports filed with the Securities and Exchange
Commission;
(viii) any modifications to the rights of Certificateholders;
(ix) the entry into, modification of, and/or termination of, a
material definitive agreement with respect to the Trust; and
(x) any amendment to this Agreement pursuant to Section 11.01;
provided that (x) the actual knowledge of a Responsible Officer of the
Certificate Administrator and the Trustee of any material legal proceedings of
which property included in the Trust Fund is subject or of any material legal
proceedings threatened by a governmental authority is limited to circumstances
where it would be reasonable for the Certificate Administrator and the Trustee
to identify such property as an asset of, or as securing an asset of, the Trust
or such threatened proceedings as concerning the Trust and (y) no Responsible
Officer of the Certificate Administrator and the Trustee shall be deemed to have
actual knowledge of the matters described in clauses (vi), (vii) or (ix) of this
Section 8.17(c) unless, solely with respect to clause (vi), any such matter
occurred or related specifically to the Trust or, with respect to clauses (vi),
(vii), (ix) and (x), a Responsible Officer was notified in writing or otherwise
has actual knowledge of such event.
(d) If as of the beginning of any fiscal year for the Trust (other
than fiscal year 2005), the Registered Certificates are held (directly or, in
the case of Registered Certificates held in book-entry form, through the
Depository) by less than 300 Holders and/or Depository Participants having
accounts with the Depository, the Certificate Administrator shall, in accordance
with the Exchange Act and the rules and regulations promulgated thereunder,
timely file a Form 15 with respect to the Trust notifying the Securities and
Exchange Commission of the suspension of the reporting requirements under the
Exchange Act and shall notify all parties to this Agreement in writing that a
Form 15 has been filed.
(e) Nothing contained in this Section 8.17 shall be construed to
require any party to this Agreement (other than the Depositor), or any of such
party's officers, to execute any Form 10-K Annual Report or any Xxxxxxxx-Xxxxx
Certification. The failure of any party to this Agreement, or any of such
party's officers, to execute any Form 10-K Annual Report or any Xxxxxxxx-Xxxxx
Certification shall not be regarded as a breach by such party of any of its
obligations under this Agreement. The Depositor, each Performing Party and the
Certificate Administrator hereby agree to negotiate in good faith with respect
to compliance with any further guidance from the Securities and Exchange
Commission or its staff relating to the execution of any Form 10-K Annual Report
and any Xxxxxxxx-Xxxxx Certification. In the event such parties agree on such
matters, this Agreement shall be amended to reflect such agreement pursuant to
Section 11.01.
(f) Each Performing Party shall indemnify and hold harmless each
Certification Party from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other costs and expenses incurred by such Certification Party arising out of
(i) an actual breach by the applicable Performing Party of its obligations under
this Section 8.17 or (ii) negligence, bad faith or willful misconduct on the
part of such Performing Party in the performance of its obligations otherwise
hereunder. A Performing Party shall have no obligation to indemnify any
Certification Party for an inaccuracy in the Performance Certification of any
other Performing Party. If the indemnification provided for in this Section 8.17
is unavailable or insufficient to hold harmless a Certification Party (on
grounds of public policy or otherwise), then each Performing Party shall
contribute to the amount paid or payable by such Certification Party as a result
of the losses, claims, damages or liabilities of such Certification Party in
such proportion as is appropriate to reflect the relative fault of such
Certification Party on the one hand and each Performing Party on the other. The
obligations of the Performing Parties in this Section 8.17(f) to contribute are
several in the proportions described in the preceding sentence and not joint.
(g) The respective parties hereto agree to cooperate with all
reasonable requests made by any Certifying Person in connection with such
Person's attempt to conduct any due diligence that such Person reasonably
believes to be appropriate in order to allow it to deliver any Xxxxxxxx-Xxxxx
Certification or portion thereof with respect to the Trust.
(h) Unless the other parties hereto receive written notice from the
Certificate Administrator to the contrary, the Certificate Administrator hereby
certifies that it intends to file any Form 10-K Annual Report with respect to
the Trust for any particular fiscal year on the last Business Day that is not
more than 90 days following the end of such fiscal year. Unless an alternative
time period is provided for in this Agreement, the respective parties hereto
shall deliver to the Certificate Administrator, at least 10 Business Days prior
to the date on which the Certificate Administrator intends to file any Form 10-K
Annual Report as contemplated by Section 8.17(a), any items required to be
delivered by such party that are to be an exhibit to such Form 10-K Annual
Report. The Certificate Administrator hereby notifies the Master Servicer and
the Special Servicer that a Form 10-K Annual Report shall be filed with respect
to the Trust for 2005.
SECTION 8.18. Maintenance of Mortgage File.
Except for the release of items in the Mortgage File contemplated by
this Agreement, including, without limitation, as necessary for the enforcement
of the holder's rights and remedies under the related Trust Mortgage Loan, the
Trustee covenants and agrees that it shall maintain each Mortgage File in the
State of Minnesota, and that it shall not move any Mortgage File outside the
State of Minnesota, other than as specifically provided for in this Agreement,
unless it shall first obtain and provide, at the expense of the Trustee, an
Opinion of Counsel to the Depositor and the Rating Agencies to the effect that
the Trustee's first priority interest in the Mortgage Notes has been duly and
fully perfected under the applicable laws and regulations of such other
jurisdiction.
ARTICLE IX
TERMINATION
SECTION 9.01. Termination upon Repurchase or Liquidation of All
Trust Mortgage Loans.
Subject to Section 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Depositor, the
Master Servicer, the Special Servicer, the Certificate Administrator and the
Trustee (other than the obligations of the Trustee to provide for and make
distributions to Certificateholders as hereafter set forth) shall terminate upon
distribution (or provision for distribution) (i) to the Certificateholders of
all amounts held by or on behalf of the Certificate Administrator and required
hereunder to be so distributed on the Distribution Date following the earlier to
occur of (A) the purchase by the Master Servicer, the Special Servicer or the
Plurality Subordinate Certificateholder of all Trust Mortgage Loans and each REO
Property (or, in the case of a Loan Combination Mortgaged Property if it has
become an REO Property, the Trust's interest therein) remaining in the Trust
Fund at a price equal to (1) the aggregate Purchase Price of all the Trust
Mortgage Loans then included in the Trust Fund, plus (2) the appraised value of
each REO Property (or, in the case of a Loan Combination Mortgaged Property if
it has become an REO Property, the Trust's interest therein), if any, then
included in the Trust Fund, such appraisal to be conducted by an Independent
Appraiser mutually agreed upon by the Master Servicer, the Special Servicer and
the Trustee, minus (3) if the purchaser is the Master Servicer, the aggregate
amount of unreimbursed Advances made by the Master Servicer, together with any
interest accrued and payable to the Master Servicer in respect of unreimbursed
Advances in accordance with Sections 3.03(d) and 4.03(d) and any unpaid Master
Servicing Fees remaining outstanding (which items shall be deemed to have been
paid or reimbursed to the Master Servicer in connection with such purchase), (B)
the exchange by the Sole Certificate Owner of all the Certificates for all the
Trust Mortgage Loans and each REO Property remaining in the Trust Fund in the
manner set forth below in this Section 9.01 and (C) the final payment or other
liquidation (or any advance with respect thereto) of the last Trust Mortgage
Loan or REO Property (in the case of a Loan Combination Mortgaged Property if it
has become an REO Property, the Trust's interest therein) remaining in the Trust
Fund, and (ii) to the Trustee, the Master Servicer, the Special Servicer, the
Certificate Administrator and the officers, directors, employees and agents of
each of them of all amounts which may have become due and owing to any of them
hereunder; provided, however, that in no event shall the Trust Fund created
hereby continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the
United States to the Court of St. James's, living on the date hereof.
Each of the Plurality Subordinate Certificateholder (or, as
contemplated in the following paragraph, the Controlling Class Representative if
one is then so acting), the Master Servicer and the Special Servicer may at its
option elect to purchase all of the Trust Mortgage Loans and each REO Property
remaining in the Trust Fund as contemplated by clause (i) (A) of the immediately
preceding paragraph by giving written notice to the other parties hereto no
later than 60 days prior to the anticipated date of purchase; provided, however,
that (i) the aggregate Stated Principal Balance of the Mortgage Pool at the time
of such election is less than 1.00% of the aggregate Cut-off Date Balances of
the Trust Mortgage Loans, (ii) the Special Servicer shall not have the right to
effect such a purchase if, within 30 days following the Special Servicer's
delivery of a notice of election pursuant to this paragraph, the Master Servicer
or the Plurality Subordinate Certificateholder shall give notice of its election
to purchase all of the Trust Mortgage Loans and each REO Property (or, in the
case of a Loan Combination Mortgaged Property if it has become an REO Property,
the Trust's interest therein) remaining in the Trust Fund and shall thereafter
effect such purchase in accordance with the terms hereof, and (iii) the Master
Servicer shall not have the right to effect such a purchase if, within 30 days
following the Master Servicer's delivery of a notice of election pursuant to
this paragraph, the Plurality Subordinate Certificateholder shall give notice of
its election to purchase all of the Trust Mortgage Loans and each REO Property
remaining in the Trust Fund and shall thereafter effect such purchase in
accordance with the terms hereof. If the Trust Fund is to be terminated in
connection with the Plurality Subordinate Certificateholder's, the Master
Servicer's or the Special Servicer's purchase of all of the Trust Mortgage Loans
and each REO Property (or, in the case of a Loan Combination Mortgaged Property
if it has become an REO Property, the Trust's interest therein) remaining in the
Trust Fund, the Plurality Subordinate Certificateholder, the Master Servicer or
the Special Servicer, as applicable, shall deliver to the Certificate
Administrator for deposit in the Collection Account not later than the
Determination Date relating to the Distribution Date on which the final
distribution on the Certificates is to occur an amount in immediately available
funds equal to the above-described purchase price. In addition, the Master
Servicer shall transfer to the Distribution Account all amounts required to be
transferred thereto on the related P&I Advance Date from the Collection Account
pursuant to the first paragraph of Section 3.04(b), together with any other
amounts on deposit in the Collection Account that would otherwise be held for
future distribution. Upon confirmation that such final deposit has been made,
the Certificate Administrator shall release or cause to be released to the
Plurality Subordinate Certificateholder, the Master Servicer or the Special
Servicer, as applicable, the Mortgage Files for the remaining Trust Mortgage
Loans and shall execute all assignments, endorsements and other instruments
furnished to it by the Plurality Subordinate Certificateholder, the Master
Servicer or the Special Servicer, as applicable, as shall be necessary to
effectuate transfer of the Trust Mortgage Loans and REO Properties (or, in the
case of a Loan Combination Mortgaged Property if it has become an REO Property,
the Trust's interest therein) to the Plurality Subordinate Certificateholder,
the Master Servicer or the Special Servicer (or their respective designees), as
applicable.
Following the date on which the aggregate Certificate Principal
Balance of the Class A-1, Class X-0, Xxxxx X-0, Class 3-FL, Class A-1A, Class
A-SB, Class A-4, Class 4-FC, Class AM, Class AJ, Class B, Class C and Class D
Certificates is reduced to zero, if one Person is the owner of a 100% Ownership
Interest of each of the other outstanding Classes of Regular Certificates (any
such Person, the "Sole Certificate Owner"), then the Sole Certificate Owner
shall have the right to exchange all of the outstanding Certificates owned by
the Sole Certificate Owner for all of the Trust Mortgage Loans and each REO
Property remaining in the Trust Fund as contemplated by clause (i)(B) of the
first paragraph of this Section 9.01(a), by giving written notice to all the
parties hereto and each Non-Trust Noteholder no later than 60 days prior to the
anticipated date of exchange; provided that no such exchange may occur if any of
the remaining REO Properties relates to a Loan Combination. In the event that
the Sole Certificate Owner elects to exchange all of the Certificates owned by
the Sole Certificate Owner for all of the Trust Mortgage Loans and, subject to
the proviso to the preceding sentence, each REO Property remaining in the Trust
Fund, the Sole Certificate Owner, not later than the fifth Business Day
preceding the Distribution Date on which the final distribution on the
Certificates is to occur, shall deposit in the Collection Account an amount in
immediately available funds equal to all amounts then due and owing to the
Depositor, the Master Servicer, the Special Servicer, and the Trustee and the
Certificate Administrator pursuant to Section 3.05(a), or that may be withdrawn
from the Distribution Account pursuant to Section 3.05(b), but only to the
extent that such amounts are not already on deposit in the Collection Account.
In addition, on the P&I Advance Date immediately preceding the final
Distribution Date, the Master Servicer shall transfer to the Distribution
Account all amounts required to be transferred thereto on such P&I Advance Date
from the Collection Account pursuant to the first paragraph of Section 3.04(b),
together with any other amounts on deposit in the Collection Account that would
otherwise be held for future distribution. Upon confirmation that such final
deposits have been made and following the surrender of all the Certificates on
the final Distribution Date, the Trustee shall release or cause to be released
to a designee of the Sole Certificate Owner, the Mortgage Files for the
remaining Trust Mortgage Loans and REO Properties and shall execute all
assignments, endorsements and other instruments furnished to it by the Sole
Certificate Owner as shall be necessary to effectuate transfer of the Trust
Mortgage Loans and REO Properties remaining in the Trust Fund; provided that, if
any Trust Mortgage Loan exchanged pursuant to this Section 9.01 is part of a
Loan Combination, then the release, endorsement or assignment of the documents
constituting the related Mortgage File and Servicing File shall be in the manner
contemplated by Section 3.10. Any transfer of Trust Mortgage Loans pursuant to
this paragraph, except with respect to the Glendale Galleria Trust Mortgage
Loan, shall be on a servicing-released basis.
Notice of any termination shall be given promptly by the Certificate
Administrator by letter to Certificateholders mailed (a) if such notice is given
in connection with the Plurality Subordinate Certificateholder's, the Master
Servicer's or the Special Servicer's purchase of the Trust Mortgage Loans and
each REO Property (or, in the case of a Loan Combination Mortgaged Property if
it has become an REO Property, the Trust's interest therein) remaining in the
Trust Fund, not earlier than the 15th day and not later than the 25th day of the
month next preceding the month of the final distribution on the Certificates or
(b) otherwise during the month of such final distribution on or before the
Determination Date in such month, in each case specifying (i) the Distribution
Date upon which the Trust Fund will terminate and final payment of the
Certificates will be made, (ii) the amount of any such final payment and (iii)
that the Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the offices of the Certificate Registrar or such other location
therein designated. The Certificate Administrator shall give such notice to the
Master Servicer, the Special Servicer and the Depositor at the time such notice
is given to Certificateholders. Upon presentation and surrender of the
Certificates (exclusive of the Class Z Certificates) by the Certificateholders
on the final Distribution Date, the Certificate Administrator shall distribute
to each such Certificateholder so presenting and surrendering its Certificates
such Certificateholder's Percentage Interest of that portion of the amounts then
on deposit in the Distribution Account that are allocable to payments on the
Class of Certificates so presented and surrendered. Amounts on deposit in the
Distribution Account as of the final Distribution Date, exclusive of any portion
thereof that would be payable to any Person in accordance with clauses (ii)
through (vii) and (ix) of Section 3.05(b), but including any portion thereof
that represents Prepayment Premiums and Yield Maintenance Charges, shall be (i)
deemed distributed in respect of the REMIC I Regular Interests in accordance
with Section 4.01(i) and/or Section 4.01(b), as applicable, (ii) actually
distributed with respect to the REMIC II Certificates and/or the Class R-I
Certificates or deemed distributed with respect to the Class A-3FL REMIC II
Regular Interest and Class A-4FC REMIC II Regular Interest, as applicable, and
(iii) actually distributed with respect to the Class A-3FL and Class A-4FC
Certificates in accordance with Section 4.01(c), in the order of priority set
forth in Section 4.01(a) and/or Section 4.01(b), as applicable, in each case, to
the extent of remaining available funds.
On or after the final Distribution Date, upon presentation and
surrender of the Class Z Certificates, the Certificate Administrator shall
distribute to the Class Z Certificateholders any amount then on deposit in the
Additional Interest Account.
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 9.01 shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Certificate Administrator 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 Certificate Administrator, directly or
through an agent, shall take such reasonable steps to contact the remaining
non-tendering Certificateholders concerning the surrender of their Certificates
as it shall deem appropriate, and shall deal with all such unclaimed amounts in
accordance with applicable law. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders following the first anniversary
of the delivery of such second notice to the non-tendering Certificateholders
shall be paid out of such funds. No interest shall accrue or be payable to any
former Holder on any amount held in trust hereunder.
SECTION 9.02. Additional Termination Requirements.
(a) If the Plurality Subordinate Certificateholder, the Master
Servicer or the Special Servicer purchases all of the Trust Mortgage Loans and
each REO Property (or, in the case of a Loan Combination Mortgaged Property if
it has become an REO Property, the Trust's interest therein) remaining in the
Trust Fund as provided in Section 9.01, the Trust Fund (and, accordingly, REMIC
I and REMIC II) shall be terminated in accordance with the following additional
requirements, unless the Person effecting the purchase obtains at its own
expense and delivers to the Certificate Administrator, an Opinion of Counsel,
addressed to the Certificate Administrator, to the effect that the failure of
the Trust Fund to comply with the requirements of this Section 9.02 will not
result in the imposition of taxes on "prohibited transactions" of REMIC I or
REMIC II as defined in Section 860F of the Code or cause either of REMIC I or
REMIC II to fail to qualify as a REMIC at any time that any Certificates are
outstanding:
(i) the Certificate Administrator shall specify the first day
in the 90-day liquidation period in a statement attached to the
final Tax Return for each of REMIC I and REMIC II pursuant to
Treasury Regulations Section 1.860F-1 and shall satisfy all
requirements of a qualified liquidation under Section 860F of the
Code and any regulations thereunder as set forth in the Opinion of
Counsel obtained pursuant to Section 9.01 from the party effecting
the purchase of all the Trust Mortgage Loans and REO Property
remaining in the Trust Fund;
(ii) during such 90-day liquidation period and at or prior to
the time of making of the final payment on the Certificates, the
Certificate Administrator shall sell all of the assets of REMIC I to
the Master Servicer, the Special Servicer or the Plurality
Subordinate Certificateholder, as applicable, for cash; and
(iii) at the time of the making of the final payment on the
Certificates, the Certificate Administrator shall distribute or
credit, or cause to be distributed or credited, to the
Certificateholders in accordance with Section 9.01 all cash on hand
(other than cash retained to meet claims), and each of REMIC I and
REMIC II shall terminate at that time.
(b) In the event the Trust Fund is to be terminated while a Swap
Agreement is still in effect, the Trustee shall promptly notify the related Swap
Counterparty in writing of the date on which the Trust Fund is to be terminated
and that the notional amount of such Swap Agreement shall be reduced to zero on
such date. Based on the date of termination, the Certificate Administrator,
prior to any final distributions to the Holders of the Class A-3FL Certificates
and/or the Holders of the Class A-4FC Certificates as contemplated by Section
9.01, shall pay the Class A-3FL Net Fixed Swap Payment, if any to the Class
A-3FL Swap Counterparty and/or the Class A-4FC Net Fixed Swap Payment, if any,
to the Class A-4FC Swap Counterparty.
(c) By their acceptance of Certificates, the Holders thereof hereby
agree to authorize the Certificate Administrator to specify the 90-day
liquidation period for each of REMIC I and REMIC II, which authorization shall
be binding upon all successor Certificateholders.
SECTION 9.03. Non-Serviced Trust Mortgage Loans.
References to "REO Property" and "REO Properties" in Sections 9.01
and 9.02 shall be deemed to include the Trust's rights with respect to any REO
Property relating to the Glendale Galleria Trust Mortgage Loan and such rights
shall be taken into account in calculating the Purchase Price.
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. REMIC Administration.
(a) The REMIC Administrator shall elect to treat each of REMIC I and
REMIC II as a REMIC under the Code and, if necessary, under applicable state
law. Such election will be made on Form 1066 or other appropriate federal or
state Tax Returns for the taxable year ending on the last day of the calendar
year in which the Certificates are issued.
(b) The REMIC I Regular Interests and the Regular Certificates are
hereby designated as "regular interests" (within the meaning of Section
860G(a)(1) of the Code) in REMIC I and the Regular Certificates, the Class A-3FL
REMIC II Regular Interest and Class A-4FC REMIC II Regular Interest are hereby
designated as "regular interests" (within the meaning of Section 860G(a)(1) of
the Code) in REMIC II. The Class R-I Certificates and the Class R-II
Certificates are hereby designated as the single class of "residual interests"
(within the meaning of Section 860G(a)(2) of the Code) in REMIC I and REMIC II,
respectively. None of the Master Servicer, the Special Servicer, the Certificate
Administrator shall (to the extent within its control) permit the creation of
any other "interests" in REMIC I and REMIC II (within the meaning of Treasury
Regulations Section 1.860D-1(b)(1)).
(c) The Closing Date is hereby designated as the "startup day" of
REMIC I and REMIC II within the meaning of Section 860G(a)(9) of the Code. The
"latest possible maturity date" of (i) the REMIC I Regular Interests, the
Regular Certificates, the Class A-3FL REMIC II Regular Interest and the Class
A-4FC REMIC II Regular Interest shall be the Rated Final Distribution Date.
(d) The related Plurality Residual Certificateholder as to the
applicable taxable year is hereby designated as the Tax Matters Person of each
of REMIC I and REMIC II, and shall act on behalf of the related REMIC in
relation to any tax matter or controversy and shall represent the related REMIC
in any administrative or judicial proceeding relating to an examination or audit
by any governmental taxing authority; provided that the REMIC Administrator is
hereby irrevocably appointed to act and shall act as agent and attorney-in-fact
for the Tax Matters Person for each of REMIC I and REMIC II in the performance
of its duties as such.
(e) Except as otherwise provided in Section 3.17(a) and subsections
(i) and (j) below, the REMIC Administrator shall pay out of its own funds any
and all routine tax administration expenses of the Trust Fund incurred with
respect to each of REMIC I and REMIC II (but not including any professional fees
or expenses related to audits or any administrative or judicial proceedings with
respect to the Trust Fund that involve the Internal Revenue Service or state tax
authorities, which extraordinary expenses shall be payable or reimbursable to
the Trustee and the Certificate Administrator from the Trust Fund unless
otherwise provided in Section 10.01(h) or 10.01(i)).
(f) Within 30 days after the Closing Date, the REMIC Administrator
shall obtain taxpayer identification numbers for each of REMIC I and REMIC II by
preparing and filing Internal Revenue Service Forms SS-4 and shall prepare and
file with the Internal Revenue Service Form 8811, "Information Return for Real
Estate Mortgage Investment Conduits (REMICs) and Issuers of Collateralized Debt
Obligations" for the Trust Fund. In addition, the REMIC Administrator shall
prepare, cause the Trustee to sign and file all of the other Tax Returns in
respect of REMIC I and REMIC II. The expenses of preparing and filing such
returns shall be borne by the REMIC Administrator without any right of
reimbursement therefor. The other parties hereto shall provide on a timely basis
to the REMIC Administrator or its designee such information with respect to each
of REMIC I and REMIC II as is in its possession and reasonably requested by the
REMIC Administrator to enable it to perform its obligations under this Article.
Without limiting the generality of the foregoing, the Depositor, within 10 days
following the REMIC Administrator's request therefor, shall provide in writing
to the REMIC Administrator such information as is reasonably requested by the
REMIC Administrator for tax purposes, as to the valuations and issue prices of
the Certificates, and the REMIC Administrator's duty to perform its reporting
and other tax compliance obligations under this Article X shall be subject to
the condition that it receives from the Depositor such information possessed by
the Depositor that is necessary to permit the REMIC Administrator to perform
such obligations.
(g) The REMIC Administrator shall perform on behalf of each of REMIC
I and REMIC II all reporting and other tax compliance duties that are the
responsibility of each such REMIC under the Code, the REMIC Provisions or other
compliance guidance issued by the Internal Revenue Service or, with respect to
State and Local Taxes, any state or local taxing authority. Included among such
duties, the REMIC Administrator shall provide to: (i) any Transferor of a
Residual Certificate or agent of a Non-Permitted Transferee, such information as
is necessary for the application of any tax relating to the transfer of a
Residual Certificate to any Person who is not a Permitted Transferee; (ii) the
Certificateholders, such information or reports as are required by the Code or
the REMIC Provisions, including, without limitation, reports relating to
interest, original issue discount and market discount or premium (using the
Prepayment Assumption as required hereunder); and (iii) the Internal Revenue
Service, the name, title, address and telephone number of the Person who will
serve as the representative of each of REMIC I and REMIC II.
(h) The REMIC Administrator shall perform its duties hereunder so as
to maintain the status of each of REMIC I and REMIC II and as a REMIC under the
REMIC Provisions (and the Certificate Administrator, the Master Servicer and the
Special Servicer shall assist the REMIC Administrator to the extent reasonably
requested by the REMIC Administrator and to the extent of information within the
Certificate Administrator's, the Master Servicer's or the Special Servicer's
possession or control). None of the REMIC Administrator, Master Servicer, the
Special Servicer, or the Certificate Administrator shall knowingly take (or
cause REMIC I or REMIC II to take) any action or fail to take (or fail to cause
to be taken) any action that, under the REMIC Provisions, if taken or not taken,
as the case may be, could be reasonably be expected to (i) endanger the status
of REMIC I or REMIC II as a REMIC, or (ii) except as provided in Section
3.17(a), result in the imposition of a tax upon either REMIC I or REMIC II
(including, but not limited to, the tax on prohibited transactions as defined in
Section 860F(a)(2) of the Code or the tax on contributions to a REMIC set forth
in Section 860G(d) of the Code (any such endangerment or imposition or, except
as provided in Section 3.17(a), imposition of a tax, an "Adverse REMIC Event")),
unless the REMIC Administrator has obtained or received an Opinion of Counsel
(at the expense of the party requesting such action or at the expense of the
Trust Fund if the REMIC Administrator seeks to take such action or to refrain
from acting for the benefit of the Certificateholders) to the effect that the
contemplated action will not result in an Adverse REMIC Event. The REMIC
Administrator shall not take any action or fail to take any action (whether or
not authorized hereunder) as to which the Master Servicer or the Special
Servicer has advised it in writing that either the Master Servicer or the
Special Servicer has received or obtained an Opinion of Counsel to the effect
that an Adverse REMIC Event could occur with respect to such action. In
addition, prior to taking any action with respect to REMIC I or REMIC II, or
causing either REMIC I or REMIC II to take any action, that is not expressly
permitted under the terms of this Agreement, the Master Servicer and the Special
Servicer shall consult with the REMIC Administrator or its designee, in writing,
with respect to whether such action could cause an Adverse REMIC Event to occur.
Neither the Master Servicer nor the Special Servicer shall take any such action
or cause either REMIC I or REMIC II to take any such action as to which the
REMIC Administrator has advised it in writing that an Adverse REMIC Event could
occur, and neither the Master Servicer nor the Special Servicer shall have any
liability hereunder for any action taken by it in accordance with the written
instructions of the REMIC Administrator. The REMIC Administrator may consult
with counsel to make such written advice, and the cost of same shall be borne by
the party seeking to take the action not expressly permitted by this Agreement,
but in no event at the cost or expense of the Trust Fund, the Trustee, the
Certificate Administrator or the REMIC Administrator. At all times as may be
required by the Code, the REMIC Administrator shall make reasonable efforts to
ensure that substantially all of the assets of each of REMIC I and REMIC II will
consist of "qualified mortgages" as defined in Section 860G(a)(3) of the Code
and "permitted investments" as defined in Section 860G(a)(5) of the Code.
(i) If any tax is imposed on either of REMIC I or REMIC II,
including, without limitation, "prohibited transactions" taxes as defined in
Section 860F(a)(2) of the Code, any tax on "net income from foreclosure
property" as defined in Section 860G(c) of the Code, any taxes on contributions
to REMIC I or REMIC II after the Startup Day pursuant to Section 860G(d) of the
Code, and any other tax imposed by the Code or any applicable provisions of
State or Local Tax laws (other than any tax permitted to be incurred by the
Special Servicer pursuant to Section 3.17(a)), such tax, together with all
incidental costs and expenses (including, without limitation, penalties and
reasonable attorneys' fees), shall be charged to and paid by: (i) the REMIC
Administrator, if such tax arises out of or results from a breach by the REMIC
Administrator of any of its obligations under this Article X provided that no
liability shall be imposed upon the REMIC Administrator under this clause if
another party has responsibility for payment of such tax under clauses (iii) or
(v) of this Section; (ii) the Special Servicer, if such tax arises out of or
results from a breach by the Special Servicer of any of its obligations under
Article III or this Article X; (iii) the Master Servicer, if such tax arises out
of or results from a breach by the Master Servicer of any of its obligations
under Article III or this Article X; (iv) the Trustee or the Certificate
Administrator, if such tax arises out of or results from a breach by the Trustee
or the Certificate Administrator, of any of its respective obligations under
Article IV, Article VIII or this Article X; or (v) the Trust Fund, excluding the
portion thereof constituting Grantor Trust A-3FL, Grantor Trust A-4FC and
Grantor Trust Z in all other instances. Any tax permitted to be incurred by the
Special Servicer pursuant to Section 3.17(a) shall be charged to and paid by the
Trust Fund. Any such amounts payable by the Trust Fund shall be paid by the
Certificate Administrator upon the written direction of the REMIC Administrator
out of amounts on deposit in the Distribution Account in reduction of the
Available Distribution Amount pursuant to Section 3.05(b).
(j) The REMIC Administrator shall, for federal income tax purposes,
maintain books and records with respect to each of REMIC I and REMIC II on a
calendar year and on an accrual basis.
(k) Following the Startup Day, none of the Trustee, the Certificate
Administrator, the Master Servicer, or the Special Servicer shall accept any
contributions of assets to REMIC I or REMIC II unless it shall have received an
Opinion of Counsel (at the expense of the party seeking to cause such
contribution and in no event at the expense of the Trust Fund, the Trustee or
the Certificate Administrator) to the effect that the inclusion of such assets
in such REMIC will not cause: (i) such REMIC to fail to qualify as a REMIC at
any time that any Certificates are outstanding; or (ii) the imposition of any
tax on such REMIC under the REMIC Provisions or other applicable provisions of
federal, state and local law or ordinances.
(l) None of the Certificate Administrator, the Master Servicer or
the Special Servicer shall consent to or, to the extent it is within the control
of such Person, permit: (i) the sale or disposition of any of the Trust Mortgage
Loans (except in connection with (A) the default or foreclosure of a Trust
Mortgage Loan, including, but not limited to, the sale or other disposition of a
Mortgaged Property acquired by deed in lieu of foreclosure, (B) the bankruptcy
of REMIC I or REMIC II, (C) the termination of REMIC I and REMIC II pursuant to
Article IX of this Agreement, or (D) a purchase of Trust Mortgage Loans pursuant
to or as contemplated by Article II or III of this Agreement); (ii) the sale or
disposition of any investments in the Collection Account, the Distribution
Account or an REO Account for gain; or (iii) the acquisition of any assets on
behalf of REMIC I or REMIC II (other than (1) a Mortgaged Property acquired
through foreclosure, deed in lieu of foreclosure or otherwise in respect of a
Trust Defaulted Mortgage Loan, (2) a Qualified Substitute Mortgage Loan pursuant
to Article II hereof and (3) Permitted Investments acquired in connection with
the investment of funds in the Collection Account, any Loan Combination
Custodial Account, the Distribution Account or an REO Account); in any event
unless it has received an Opinion of Counsel (at the expense of the party
seeking to cause such sale, disposition, or acquisition but in no event at the
expense of the Trust Fund, the Trustee or the Certificate Administrator) to the
effect that such sale, disposition, or acquisition will not cause: (x) either of
REMIC I or REMIC II to fail to qualify as a REMIC at any time that any
Certificates are outstanding; or (y) the imposition of any tax on REMIC I or
REMIC II under the REMIC Provisions or other applicable provisions of federal,
state and local law or ordinances.
(m) Except as permitted by Section 3.17(a), none of the Trustee, the
Master Servicer and the Special Servicer shall enter into any arrangement by
which REMIC I or REMIC II will receive a fee or other compensation for services
nor permit REMIC I or REMIC II to receive any income from assets other than
"qualified mortgages" as defined in Section 860G(a)(3) of the Code or "permitted
investments" as defined in Section 860G(a)(5) of the Code.
SECTION 10.02. Grantor Trust Administration.
(a) The REMIC Administrator shall treat each of Grantor Trust A-3FL,
Grantor Trust A-4FC and Grantor Trust Z for tax return preparation purposes, as
a "grantor trust" under the Code and shall treat (i) the Class A-3FL REMIC II
Regular Interest and distributions thereon, the Class A-3FL Swap Agreement and
payments by the Class A-3FL Swap Counterparty thereunder and the applicable
sub-account of the Floating Rate Account as separate assets of Grantor Trust
A-3FL, (ii) the Class A-4FC REMIC II Regular Interest and distributions thereon,
the Class A-4FC Swap Agreement and payments by the Class A-4FC Swap Counterparty
thereunder and the applicable sub-account of the Floating Rate Account as
separate assets of Grantor Trust A-4FC, and (iii) the Additional Interest, the
Additional Interest Account and amounts held from time to time in the Additional
Interest Account that represent Additional Interest as separate assets of
Grantor Trust Z, and in each case (clauses (i) through (iii) above) not of REMIC
I or REMIC II, as permitted by Treasury Regulations Section 1.860G-2(i)(1). The
Class A-3FL Certificates are hereby designated as representing an undivided
beneficial ownership interest in Grantor Trust A-3FL. The Class A-4FC
Certificates are hereby designated as representing an undivided beneficial
ownership interest in Grantor Trust A-4FC. The Class Z Certificates are hereby
designated as representing an undivided beneficial interest in Grantor Trust Z
and the Additional Interest payable on the Trust Mortgage Loans and proceeds
thereof.
(b) The REMIC Administrator shall pay out of its own funds any and
all routine tax administration expenses of the Trust Fund incurred with respect
to Grantor Trust A-3FL, Grantor Trust A-4FC and Grantor Trust Z (but not
including any professional fees or expenses related to audits or any
administrative or judicial proceedings with respect to the Trust Fund that
involve the Internal Revenue Service or state tax authorities which
extraordinary expenses shall be payable or reimbursable to the REMIC
Administrator from the Trust Fund unless otherwise provided in Section 10.02(e)
or 10.02(f)).
(c) The REMIC Administrator shall prepare, cause the Trustee to sign
and file when due all of the Tax Returns in respect of Grantor Trust A-3FL,
Grantor Trust A-4FC and Grantor Trust Z. The expenses of preparing and filing
such returns shall be borne by the REMIC Administrator without any right of
reimbursement therefor. The other parties hereto shall provide on a timely basis
to the REMIC Administrator or its designee such information with respect to
Grantor Trust A-3FL, Grantor Trust A-4FC and Grantor Trust Z as is in its
possession and reasonably requested by the REMIC Administrator to enable it to
perform its obligations under this Section 10.02. Without limiting the
generality of the foregoing, the Depositor, within 10 days following the REMIC
Administrator's request therefor, shall provide in writing to the REMIC
Administrator such information as is reasonably requested by the REMIC
Administrator for tax purposes, and the REMIC Administrator's duty to perform
its reporting and other tax compliance obligations under this Section 10.02
shall be subject to the condition that it receives from the Depositor such
information possessed by the Depositor that is necessary to permit the REMIC
Administrator to perform such obligations.
(d) The REMIC Administrator shall furnish or cause to be furnished
to the Holders of the Class A-3FL Certificates, the Holders of the Class A-4FC
Certificates and/or the Holders of the Class Z Certificates, as the case may be,
such information as to their respective portions of the income and expenses of
Grantor Trust A-3FL, Grantor Trust A-4FC or Grantor Trust Z, as the case may be,
as may be required under the Code, and shall perform on behalf of Grantor Trust
A-3FL, Grantor Trust A-4FC and Grantor Trust Z all reporting and other tax
compliance duties that are required in respect thereof under the Code, the
Grantor Trust Provisions or other compliance guidance issued by the Internal
Revenue Service or any state or local taxing authority.
(e) The REMIC Administrator shall perform its duties hereunder so as
to maintain the status of each of Grantor Trust A-3FL, Grantor Trust A-4FC and
Grantor Trust Z as a "grantor trust" under the Grantor Trust Provisions (and the
Trustee, the Certificate Administrator, the Master Servicer and the Special
Servicer shall assist the REMIC Administrator to the extent reasonably requested
by the REMIC Administrator and to the extent of information within the
Trustee's, the Certificate Administrator's, the Master Servicer's or the Special
Servicer's possession or control). None of the REMIC Administrator, Master
Servicer, the Special Servicer, the Certificate Administrator or the Trustee
shall knowingly take (or cause any of Grantor Trust A-3FL, Grantor Trust A-4FC
or Grantor Trust Z to take) any action or fail to take (or fail to cause to be
taken) any action that, under the Grantor Trust Provisions, if taken or not
taken, as the case may be, could reasonably be expected to endanger the status
of any of Grantor Trust A-3FL, Grantor Trust A-4FC or Grantor Trust Z as a
grantor trust under the Grantor Trust Provisions (any such endangerment of
grantor trust status, an "Adverse Grantor Trust Event"), unless the REMIC
Administrator has obtained or received an Opinion of Counsel (at the expense of
the party requesting such action or at the expense of the Trust Fund if the
REMIC Administrator seeks to take such action or to refrain from taking any
action for the benefit of the Certificateholders) to the effect that the
contemplated action will not result in an Adverse Grantor Trust Event. None of
the other parties hereto shall take any action or fail to take any action
(whether or not authorized hereunder) as to which the REMIC Administrator has
advised it in writing that the REMIC Administrator has received or obtained an
Opinion of Counsel to the effect that an Adverse Grantor Trust Event could
result from such action or failure to act. In addition, prior to taking any
action with respect to Grantor Trust A-3FL, Grantor Trust A-4FC or Grantor Trust
Z or causing the Trust Fund to take any action that is not expressly permitted
under the terms of this Agreement, the Master Servicer and the Special Servicer
shall consult with the REMIC Administrator or its designee, in writing, with
respect to whether such action could cause an Adverse Grantor Trust Event to
occur. Neither the Master Servicer nor the Special Servicer shall have any
liability hereunder for any action taken by it in accordance with the written
instructions of the REMIC Administrator. The REMIC Administrator may consult
with counsel to make such written advice, and the cost of same shall be borne by
the party seeking to take the action not expressly permitted by this Agreement,
but in no event at the cost or expense of the Trust Fund, the REMIC
Administrator, the Certificate Administrator or the Trustee. Under no
circumstances may the REMIC Administrator vary the assets of any of Grantor
Trust A-3FL, Grantor Trust A-4FC or Grantor Trust Z so as to take advantage of
variations in the market so as to improve the rate of return of Holders of the
Class A-3FL Certificates, the Holders of the Class A-4FC Certificates or the
Holders of the Class Z Certificates, as the case may be.
(f) If any tax is imposed on any of Grantor Trust A-3FL, Grantor
Trust A-4FC or Grantor Trust Z, such tax, together with all incidental costs and
expenses (including, without limitation, penalties and reasonable attorneys'
fees), shall be charged to and paid by: (i) the REMIC Administrator, if such tax
arises out of or results from a breach by the REMIC Administrator of any of its
obligations under this Section 10.02; (ii) the Special Servicer, if such tax
arises out of or results from a breach by the Special Servicer of any of its
obligations under Article III or this Section 10.02; (iii) the Master Servicer,
if such tax arises out of or results from a breach by the Master Servicer of any
of its obligations under Article III or this Section 10.02; (iv) the Trustee or
the Certificate Administrator, if such tax arises out of or results from a
breach by the Trustee or the Certificate Administrator, of any of its
obligations under Article IV, Article VIII or this Section 10.02; or (v) the
portion of the Trust Fund constituting Grantor Trust A-3FL, Grantor Trust A-4FC
or Grantor Trust Z, as the case may be, in all other instances.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.
(a) This Agreement may be amended from time to time by the agreement
of the Master Servicer, the Special Servicer, the Certificate Administrator and
the Trustee, without the consent of any of the Certificateholders, (i) to cure
any ambiguity, (ii) to correct, modify or supplement any provision herein which
may be inconsistent with any other provision herein or with the description of
this Agreement set forth in the Prospectus or the Prospectus Supplement, (iii)
to add any other provisions with respect to matters or questions arising
hereunder which shall not be materially inconsistent with the existing
provisions hereof, (iv) to relax or eliminate any requirement hereunder imposed
by the REMIC Provisions if the REMIC Provisions are amended or clarified such
that any such requirement may be relaxed or eliminated, (v) to modify, eliminate
or add to the provisions of Section 5.02(d) or any other provision hereof
restricting transfer of the Residual Certificates by virtue of their being
"residual interests" in a REMIC provided that such change shall not, as
evidenced by an Opinion of Counsel, cause the Trust Fund or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is not a Permitted Transferee, (vi) to
relax or eliminate any requirement hereunder imposed by the Securities Act or
the rules thereunder if the Securities Act or those rules are amended or
clarified so as to allow for the relaxation or elimination of that requirement,
(vii) if such amendment, as evidenced by an Opinion of Counsel (at the expense
of the Trust Fund, in the case of any amendment requested by the Master Servicer
or Special Servicer that protects or is in furtherance of the interests of the
Certificateholders, and otherwise at the expense of the party seeking such
amendment) delivered to the Master Servicer, the Special Servicer, the
Certificate Administrator and the Trustee, is advisable or reasonably necessary
to comply with any requirements imposed by the Code or any successor or
amendatory statute or any temporary or final regulation, revenue ruling, revenue
procedure or other written official announcement or interpretation relating to
federal income tax laws or any such proposed action which, if made effective,
would apply retroactively to REMIC I, REMIC II or any grantor trust created
hereunder at least from the effective date of such amendment, or would be
necessary to avoid the occurrence of a prohibited transaction or to reduce the
incidence of any tax that would arise from any actions taken with respect to the
operation of any such REMIC or grantor trust, (viii) to modify or add any
provisions as may be required in connection with a subsequent securitization of
the Glendale Galleria Pari Passu Non-Trust Loan after its removal from the trust
fund for the MLMT Series 2005-CKI1 Securitization or (ix) to otherwise modify or
delete existing provisions of this Agreement; provided that no such amendment
hereof that is covered solely by clause (iii), (viii) or (ix) above may, as
evidenced by an Opinion of Counsel (at the expense of the Trust Fund, in the
case of any amendment requested by the Master Servicer or Special Servicer that
protects or is in furtherance of the interests of the Certificateholders, and
otherwise at the expense of the party seeking such amendment) obtained by or
delivered to the Master Servicer, the Special Servicer, the Certificate
Administrator and the Trustee, adversely affect in any material respect the
interests of any Certificateholder or adversely affect (other than in a de
minimis respect) the interests of any Non-Trust Noteholder; and provided,
further, that no such amendment may adversely affect the rights and/or interests
of the Depositor without its consent; and provided, further, that the Master
Servicer, the Special Servicer, the Certificate Administrator and the Trustee
shall have first obtained from each Rating Agency written confirmation that such
amendment will not result in an Adverse Rating Event; and provided, further,
that no such amendment hereof that is covered by any of clauses (i) through (ix)
above may significantly change the activities of the Trust.
(b) This Agreement may also be amended from time to time by the
agreement of the Master Servicer, the Special Servicer, the Certificate
Administrator and the Trustee with the consent of the Holders of Certificates
entitled to at least 66-2/3% of the Voting Rights for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the Holders of
Certificates; provided, however, that no such amendment shall (i) reduce in any
manner the amount of, or delay the timing of, payments received or advanced on
Trust Mortgage Loans that are required to be distributed on any Certificate
without the consent of the Holder of such Certificate, (ii) as evidenced by an
Opinion of Counsel obtained by or delivered to the Master Servicer, the Special
Servicer and the Trustee, adversely affect in any material respect the interests
of the Holders of any Class of Certificates in a manner other than as described
in (i) without the consent of the Holders of all Certificates of such Class,
(iii) modify the provisions of this Section 11.01 without the consent of the
Holders of all Certificates then outstanding, (iv) modify the provisions of
Section 3.20 without the consent of the Holders of Certificates entitled to all
of the Voting Rights, (v) modify the definition of Servicing Standard or the
specified percentage of Voting Rights which are required to be held by
Certificateholders to consent or not to object to any particular action pursuant
to any provision of this Agreement without the consent of the Holders of all
Certificates then outstanding, (vi) significantly change the activities of the
Trust without the consent of the Holders of Certificates entitled to at least
51% of the Voting Rights, without regard to any Certificates held by the
Depositor or any of its Affiliates or agents, (vii) amend defined terms
contained in this Agreement as they relate to Section 2.01(d) or the repurchase
and/or substitution obligations of any Mortgage Loan Seller unless such Mortgage
Loan Seller shall have agreed to such amendment in writing, (viii) adversely
affect (other than in a de minimis respect) the rights and/or interests of a
Non-Trust Noteholder without its consent or (ix) adversely affect the rights
and/or interests of the Depositor without its consent. Notwithstanding any other
provision of this Agreement, for purposes of the giving or withholding of
consents pursuant to this Section 11.01, Certificates registered in the name of
the Depositor or any Affiliate of the Depositor shall be entitled to the same
Voting Rights with respect to matters described above as they would if any other
Person held such Certificates, so long as neither the Depositor nor any of its
Affiliates is performing servicing duties with respect to any of the Trust
Mortgage Loans.
(c) Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement unless it shall
first have obtained or been furnished with an Opinion of Counsel (at the expense
of the Trust Fund, in the case of any amendment requested by the Master Servicer
or Special Servicer that protects or is in furtherance of the interests of the
Certificateholders, and, otherwise, at the expense of the party seeking such
amendment) to the effect that (i) such amendment or the exercise of any power
granted to the Trustee, the Certificate Administrator, the Master Servicer or
the Special Servicer in accordance with such amendment will not result in the
imposition of a tax on REMIC I or REMIC II pursuant to the REMIC Provisions or
on Grantor Trust A-3FL, Grantor Trust A-4FC or Grantor Trust Z or cause either
of REMIC I or REMIC II to fail to qualify as a REMIC or any of Grantor Trust
A-3FL, Grantor Trust A-4FC or Grantor Trust Z to fail to qualify as a grantor
trust at any time that any Certificates are outstanding and (ii) such amendment
complies with the provisions of this Section 11.01.
(d) Promptly after the execution of any such amendment, the
Certificate Administrator shall send a copy thereof to each Certificateholder,
the Swap Counterparties and each Non-Trust Noteholder.
(e) It shall not be necessary for the consent of Certificateholders
under this Section 11.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Certificate Administrator may prescribe.
(f) Each of the Master Servicer, the Special Servicer, the
Certificate Administrator and the Trustee may but shall not be obligated to
enter into any amendment pursuant to this Section that affects its rights,
duties and immunities under this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 11.01(a), (b) or (c) shall be borne by the Person seeking the related
amendment, except that if the Master Servicer, the Special Servicer, the
Certificate Administrator or the Trustee requests any amendment of this
Agreement that protects or is in furtherance of the rights and interests of
Certificateholders, the cost of any Opinion of Counsel required in connection
therewith pursuant to Section 11.01(a), (b) or (c) shall be payable out of the
Collection Account or the Distribution Account pursuant to Section 3.05.
(h) Notwithstanding anything to the contrary contained in this
Section 11.01, the parties hereto agree that (i) this Agreement may not be
amended except upon 10 days' prior written notice to the Swap Counterparties and
(ii) this Agreement may not be amended in any manner that has a material adverse
effect on a Swap Counterparty without first obtaining the written consent of
such Counterparty. The Certificate Administrator may obtain and rely upon an
Opinion of Counsel provided to it at the expense of the party seeking the
amendment to the effect that such action will not adversely affect in any
material respect the interests of either a Swap Counterparty (or at the expense
of the Trust if the Certificate Administrator is the party seeking such
amendment and such amendment benefits the Certificateholders).
(i) The Certificate Administrator shall give the Depositor
reasonable prior written notice of any amendment sought to be entered into
pursuant to subsection (a) or (b) above.
SECTION 11.02. Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer at the expense of the Trust Fund or, to the
extent that it benefits one or more Non-Trust Noteholders, such Non-Trust
Noteholder(s), but only upon direction accompanied by an Opinion of Counsel (the
cost of which may be paid out of the Collection Account pursuant to Section
3.05(a) or, to the extent that it benefits such Non-Trust Noteholder(s), out of
the related Loan Combination Custodial Account pursuant to Section 3.05(e)) to
the effect that such recordation materially and beneficially affects the
interests of the Certificateholders and/or one or more Non-Trust Noteholders;
provided, however, that the Certificate Administrator shall have no obligation
or responsibility to determine whether any such recordation of this Agreement is
required.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
SECTION 11.03. Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) No Certificateholder (except as expressly provided for herein)
shall have any right to vote or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Trust
Mortgage Loan, unless, with respect to any suit, action or proceeding upon or
under or with respect to this Agreement, such Holder previously shall have given
to the Trustee a written notice of default hereunder, and of the continuance
thereof, as hereinbefore provided, and unless also (except in the case of a
default by the Trustee) the Holders of Certificates entitled to at least 25% of
the Voting Rights shall have made written request upon the Trustee to institute
such action, suit or proceeding in its own name as Trustee hereunder and shall
have offered to the Trustee such reasonable indemnity as it may require against
the costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee, for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding. It is understood and intended, and expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner
whatsoever by virtue of any provision of this Agreement to affect, disturb or
prejudice the rights of the Holders of any other of such Certificates, or to
obtain or seek to obtain priority over or preference to any other such Holder,
which priority or preference is not otherwise provided for herein, or to enforce
any right under this Agreement, except in the manner herein provided and for the
equal, ratable and common benefit of all Certificateholders. For the protection
and enforcement of the provisions of this Section, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 11.04. Governing Law.
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 when delivered to:
(i) in the case of the Depositor, Xxxxxxx Xxxxx Mortgage Investors,
Inc., 4 World Financial Center, 10th Floor, 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxxxx X. XxXxxxxx, Director, facsimile
number: (000) 000-0000;
(ii) in the case of the Master Servicer, GMAC Commercial Mortgage
Corporation, 000 Xxxxxx Xx., Xxxxxxx, Xxxxxxxxxxxx 00000, Attention:
Managing Director--Commerical Servicing Operations, facsimile number:
(000) 000-0000, (with a copy to General Counsel, facsimile number: (215)
328-3620);
(iii) in the case of the Special Servicer, LNR Partners, Inc., 0000
Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxxxx, Xxxxxxx 00000, Attention: Xxxxx
Xxxxxxx, facsimile number: (000) 000-0000;
(iv) in the case of the Trustee, Xxxxx Fargo Bank, N.A., 0000 Xxx
Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust
Services-MLMT 2005-LC1, facsimile number: (000) 000-0000;
(v) in the case of the Certificate Administrator, LaSalle Bank
National Association, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000, Attention: Global Securities and Trust Services
Group--Xxxxxxx Xxxxx Mortgage Trust 2005-LC1, facsimile number: (312)
904-1085;
(v) in the case of the Underwriters,
(A) Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, 4
World Financial Center, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxx Xxxxxxx, Re: Xxxxxxx Xxxxx Mortgage
Trust 2005-LC1, Commercial Mortgage Pass-Through Certificates,
Series 2005-LC1, facsimile number: (000) 000-0000;
(B) Countrywide Securities Corporation, 0000 Xxxx Xxxxxxx -
XXXX-000, Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxxx Xxxxxxxx,
Re: Xxxxxxx Xxxxx Mortgage Trust 2005-LC1, Commercial Mortgage
Pass-Through Certificates, Series 2005-LC1, facsimile number:
(000) 000-0000;
(C) LaSalle Financial Services, Inc., 00 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, Attention: Global Securities and Trust Services
Group-Xxxxxxx Xxxxx Mortgage Trust 2005-LC1, facsimile number:
(000) 000-0000;
(D) Deutsche Bank Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxxx Xxxx, facsimile number:
(000) 000-0000;
(E) X.X. Xxxxxx Securities Inc., 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: CMBS Trading, facsimile number: (212)
834-6598; and
(D) Xxxxxx Xxxxxxx & Co. Incorporated, 0000 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 Attention: Xxxxxx Friend (with a copy to
Xxxxxxxx Xxxxx, Esq.), facsimile number: (000) 000-0000;
(vi) in the case of the Rating Agencies,
(A) Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., 00 Xxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx
00000, Attention: CMBS Surveillance Group, facsimile number: (212)
438-2662; and
(B) Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Commercial Mortgage Surveillance,
facsimile number: (000) 000-0000;
(vii) in the case of the initial Controlling Class Representative,
LNR Securities Holdings, LLC, 0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxx
Xxxxx, Xxxxxxx 00000, Attention: Xxxxxx X. Xxxxxx, facsimile number: (305)
695-5449;
or as to each such Person such other address as may hereafter be furnished by
such Person to the parties hereto in writing. Any communication required or
permitted to be delivered to a Certificateholder shall be deemed to have been
duly given when mailed first class, postage prepaid, to the address of such
Holder as shown in the Certificate Register.
SECTION 11.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.07. Grant of a Security Interest.
The Depositor and the Trustee agree that it is their intent that the
conveyance of the Depositor's right, title and interest in and to the Trust
Mortgage Loans pursuant to this Agreement shall constitute a sale and not a
pledge of security for a loan. If such conveyance is deemed to be a pledge of
security for a loan, however, the Depositor intends that the rights and
obligations of the parties to such loan shall be established pursuant to the
terms of this Agreement. The Depositor also intends and agrees that, in such
event, the Depositor shall be deemed to have granted to the Trustee (in such
capacity) a first priority security interest in the Depositor's entire right,
title and interest in and to the assets constituting the Trust Fund.
SECTION 11.08. Xxxxxx Act.
Any provisions required to be contained in this Agreement by Section
126 of Article 4-A of the New York Real Property Law are hereby incorporated
herein, and such provisions shall be in addition to those conferred or imposed
by this Agreement; provided, however, that to the extent that such Section 126
shall not have any effect, and if said Section 126 should at any time be
repealed or cease to apply to this Agreement or be construed by judicial
decision to be inapplicable, said Section 126 shall cease to have any further
effect upon the provisions of this Agreement. In case of a conflict between the
provisions of this Agreement and any mandatory provisions of Article 4-A of the
New York Real Property Law, such mandatory provisions of said Article 4-A shall
prevail, provided that if said Article 4-A shall not apply to this Agreement,
should at any time be repealed, or cease to apply to this Agreement or be
construed by judicial decision to be inapplicable, such mandatory provisions of
such Article 4-A shall cease to have any further effect upon the provisions of
this Agreement.
SECTION 11.09. Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of the parties hereto, and
all such provisions shall inure to the benefit of the Certificateholders. Each
of the Sub-Servicers that is a party to a Sub-Servicing Agreement in effect on
the Closing Date (or being negotiated as of the Closing Date and in effect
within 90 days thereafter) shall be a third-party beneficiary to the obligations
of a successor Master Servicer under Section 3.22, provided that the sole remedy
for any claim by a Sub-Servicer as a third party beneficiary pursuant to this
Section 11.09 shall be against a successor Master Servicer solely in its
corporate capacity and no Sub-Servicer shall have any rights or claims against
the Trust Fund or any party hereto (other than a successor Master Servicer in
its corporate capacity as set forth in this Section 11.09) as a result of any
rights conferred on such Sub-Servicer as a third party beneficiary pursuant to
this Section 11.09. Each Non-Trust Noteholder and any designee thereof acting on
behalf of or exercising the rights of such Non-Trust Noteholder shall be a third
party beneficiary to this Agreement with respect to its rights as specifically
provided for herein and under the related Loan Combination Intercreditor
Agreement. The MLMT Series 2005-CKI1 Master Servicer and the MLMT Series
2005-CKI1 Special Servicer shall each be a third-party beneficiary to this
Agreement with respect to the rights as specifically provided for herein and
under the Glendale Galleria Intercreditor Agreement. This Agreement may not be
amended in any manner that would adversely affect the rights of any third party
beneficiary hereof without its consent. No other person, including, without
limitation, any Mortgagor, shall be entitled to any benefit or equitable right,
remedy or claim under this Agreement.
SECTION 11.10. Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
SECTION 11.11. Notices to Rating Agencies.
(a) The Certificate Administrator shall promptly provide notice to
each Rating Agency and the Controlling Class Representative (and, if affected
thereby, any Non-Trust Noteholder) with respect to each of the following of
which it has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been
cured;
(iii) the resignation or termination of the Trustee, the
Master Servicer or the Special Servicer;
(iv) the repurchase of Trust Mortgage Loans by any of the
Mortgage Loan Sellers pursuant to the applicable Loan Purchase
Agreement;
(v) any change in the location of the Distribution Account;
(vi) the final payment to any Class of Certificateholders; and
(vii) any sale or disposition of any Trust Mortgage Loan or
REO Property.
(b) The Master Servicer shall promptly provide notice to each Rating
Agency (and, if affected thereby, any Non-Trust Noteholder) with respect to each
of the following of which it has actual knowledge:
(i) the resignation or removal of the Trustee or Certificate
Administrator; and
(ii) any change in the location of the Collection Account.
(c) The Special Servicer shall furnish each Rating Agency and the
Controlling Class Representative (and, with respect to a Loan Combination, the
related Non-Trust Noteholder(s)) with respect to a Trust Specially Serviced
Mortgage Loan such information as the Rating Agency or Controlling Class
Representative (and, with respect to a Loan Combination, the related Non-Trust
Noteholder(s)) shall reasonably request and which the Special Servicer can
reasonably provide in accordance with applicable law.
(d) To the extent applicable, each of the Master Servicer and the
Special Servicer shall promptly furnish to each Rating Agency copies of the
following items:
(i) each of its annual statements as to compliance described
in Section 3.13;
(ii) each of its annual independent public accountants'
servicing reports described in Section 3.14; and
(iii) any Officer's Certificate delivered by it to the
Certificate Administrator pursuant to Section 3.03(e), 4.03(c) or
3.08.
(e) The Certificate Administrator shall (i) make available to each
Rating Agency and the Controlling Class Representative, upon reasonable notice,
the items described in Section 3.15(a) and (ii) promptly deliver to each Rating
Agency and the Controlling Class Representative a copy of any notices given
pursuant to Section 7.03(a) or Section 7.03(b).
(f) Each of the Trustee, the Certificate Administrator, the Master
Servicer and the Special Servicer shall provide to each Rating Agency such other
information with respect to the Trust Mortgage Loans and the Certificates, to
the extent such party possesses such information, as such Rating Agency shall
reasonably request.
(g) The Master Servicer shall give each Rating Agency at least 15
days' notice prior to any reimbursement to it of Nonrecoverable Advances from
amounts in the Collection Account allocable to interest on the Trust Mortgage
Loans unless (1) the Master Servicer determines in its sole discretion that
waiting 15 days after such a notice could jeopardize the Master Servicer's
ability to recover Nonrecoverable Advances, (2) changed circumstances or new or
different information becomes known to the Master Servicer that could affect or
cause a determination of whether any Advance is a Nonrecoverable Advance,
whether to defer reimbursement of a Nonrecoverable Advance or the determination
in clause (1) above, or (3) the Master Servicer has not timely received from the
Certificate Administrator information requested by the Master Servicer to
consider in determining whether to defer reimbursement of a Nonrecoverable
Advance; provided that, if clause (1), (2) or (3) apply, the Master Servicer
shall give each Rating Agency notice of an anticipated reimbursement to it of
Nonrecoverable Advances from amounts in the Collection Account allocable to
interest on the Trust Mortgage Loans as soon as reasonably practicable in such
circumstances. The Master Servicer shall have no liability for any loss,
liability or expense resulting from any notice provided to any Rating Agency
contemplated by the immediately preceding sentence.
(h) Notwithstanding any provision herein to the contrary, each of
the Master Servicer, the Special Servicer, the Certificate Administrator or the
Trustee shall deliver to any Underwriter any report prepared by such party
hereunder upon request.
SECTION 11.12. Complete Agreement.
This Agreement embodies the complete agreement among the parties and
may not be varied or terminated except by a written agreement conforming to the
provisions of Section 11.01. All prior negotiations or representations of the
parties are merged into this Agreement and shall have no force or effect unless
expressly stated herein.
SECTION 11.13. WAIVER OF TRIAL BY JURY.
THE PARTIES HERETO HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY
LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM,
WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.,
Depositor
By:
-----------------------------------------
Name:
Title:
GMAC COMMERCIAL MORTGAGE CORPORATION,
Master Servicer
By:
-----------------------------------------
Name:
Title:
LNR PARTNERS, INC.,
Special Servicer
By:
-----------------------------------------
Name:
Title:
XXXXX FARGO BANK, N.A.,
Trustee
By:
-----------------------------------------
Name:
Title:
LASALLE BANK NATIONAL ASSOCIATION,
Certificate Administrator
By:
-----------------------------------------
Name:
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ______ day of December 2005, before me, a notary public in
and for said State, personally appeared ______________________________________,
known to me to be a _______________________________________ of XXXXXXX XXXXX
MORTGAGE INVESTORS, INC., one of the entities that executed the within
instrument, and also known to me to be the person who executed it on behalf of
such entity, and acknowledged to me that such entity executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
----------------------------------
Notary Public
[Notarial Seal]
STATE OF_______________ )
) ss.:
COUNTY OF______________ )
On the ______ day of December 2005, before me, a notary public in
and for said State, personally appeared ______________________________________,
known to me to be a ______________________________________ of [__________], one
of the entities that executed the within instrument, and also known to me to be
the person who executed it on behalf of such entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
----------------------------------
Notary Public
[Notarial Seal]
STATE OF_______________ )
) ss.:
COUNTY OF______________ )
On the _____ day of December 2005, before me, a notary public in and
for said State, personally appeared ____________, known to me to be a __________
of LNR PARTNERS, INC., one of the entities that executed the within instrument,
and also known to me to be the person who executed it on behalf of such entity,
and acknowledged to me that such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
----------------------------------
Notary Public
[Notarial Seal]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ______ day of December, 2005, before me, a notary public in
and for said State, personally appeared ______________________________________,
known to me to be a ___________________________________ of XXXXX FARGO BANK,
N.A., one of the entities that executed the within instrument, and also known to
me to be the person who executed it on behalf of such entity, and acknowledged
to me that such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
----------------------------------
Notary Public
[Notarial Seal]
STATE OF ILLINOIS ) ss.:
COUNTY OF XXXX )
On the ______ day of December, 2005, before me, a notary public in
and for said State, personally appeared ______________________________________,
known to me to be a ___________________________________ of LASALLE BANK
NATIONAL, one of the entities that executed the within instrument, and also
known to me to be the person who executed it on behalf of such entity, and
acknowledged to me that such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
----------------------------------
Notary Public
[Notarial Seal]
EXHIBIT A-1
FORM OF CLASS X-0, X-0, X-0, X-0XX, X-0X, X-XX, X-0 AND A-4FC CERTIFICATES
XXXXXXX XXXXX MORTGAGE TRUST 2005-LC1
CLASS [A-1] [A-2] [A-3] [A-3FL] [A-1A] [A-SB] [A-4] [A-4FC]COMMERCIAL
MORTGAGE PASS-THROUGH CERTIFICATE, SERIES 2005-LC1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust") whose assets consist primarily of a pool (the
"Mortgage Pool") of commercial, multifamily and manufactured housing community
mortgage loans (the "Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Pass-Through Rate: [___% per annum] Initial Certificate Principal Balance of
[Variable] this Certificate as of the Closing Date:
$______
Date of Pooling and Servicing Class Principal Balance of all the Class
Agreement: December 1, 2005 [A-1] [A-2] [A-3] [A-3FL] [A-1A] [A-SB]
[A-4] [A-4FC] Certificates as of the
Closing Date:
$______
Closing Date: December 28, 0000 Xxxxxxxxx unpaid principal balance of the
Mortgage Pool as of the Cut-off Date,
First Distribution Date: January 12, after deducting payments of principal due
2006 on or before such date (the "Initial Pool
Balance"): $1,546,255,943
Master Servicer: GMAC Commercial Trustee: Xxxxx Fargo Bank, N.A.
Mortgage Corporation
Special Servicer: LNR Partners, Inc. Certificate Administrator: LaSalle Bank
National Association
Certificate No. [A-1] [A-2] [A-3] CUSIP No.: [ ]
[A-3FL] [A-1A] [A-SB] [A-4] [A-4FC]
[FOR BOOK ENTRY CERTIFICATES:] UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST CORPORATION, A NEW YORK
CORPORATION ("DTC"), TO THE DEPOSITOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, IF THE PURCHASE OR HOLDING OF THIS CERTIFICATE OR SUCH INTEREST
HEREIN WOULD RESULT IN A VIOLATION OF SECTION 406 OR 407 OF ERISA OR SECTION
4975 OF THE CODE OR WOULD RESULT IN THE IMPOSITION OF AN EXCISE TAX UNDER
SECTION 4975 OF THE CODE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., GMAC COMMERCIAL MORTGAGE CORPORATION, LNR
PARTNERS, INC., XXXXX FARGO[, LASALLE BANK NATIONAL ASSOCIATION] OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
[FOR CLASS X-0, X-0, X-0, X-0X, X-XX, xxx X-0: SOLELY FOR U.S. FEDERAL INCOME
TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.]
[FOR CLASSES A-3FL and A-4FC: SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS
CERTIFICATE IS A BENEFICIAL OWNERSHIP INTEREST IN THE PORTION OF THE TRUST FUND
CONSISTING OF THE CLASS A-[3FL] [4FC] REMIC II REGULAR INTEREST, THE SWAP
AGREEMENT AND THE FLOATING RATE ACCOUNT, THE CORRESPONDING CLASS A-[3FL] [4FC]
REMIC II REGULAR INTEREST REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that [CEDE & CO.] [ ] is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Closing Date by the aggregate principal balance of all the Certificates
of the same Class as this Certificate (their "Class Principal Balance") as of
the Closing Date) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), between Xxxxxxx
Xxxxx Mortgage Investors, Inc., as depositor (the "Depositor", which term
includes any successor entity under the Agreement), GMAC Commercial Mortgage
Corporation, as master servicer (the "Master Servicer", which term includes any
successor entity under the Agreement), LNR Partners, Inc., as special servicer
(the "Special Servicer", which term includes any successor entity under the
Agreement), Xxxxx Fargo Bank, N.A., as trustee (the "Trustee", which term
includes any successor entity under the Agreement),and LaSalle Bank National
Association, as certificate administrator (the "Certificate Administrator",
which term includes any successor entity under the Agreement), a summary of
certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound. In the event of any conflict between
any provision of this Certificate and any provision of the Agreement, such
provision of this Certificate shall be superseded to the extent of such
inconsistency.
Pursuant to the terms of the Agreement, distributions will be made
on the 12th day of any given month, or if the 12th day is not a Business Day, on
the next succeeding Business Day (each, a "Distribution Date"). Distributions
will be made commencing on the first Distribution Date specified above, to the
Person in whose name this Certificate is registered at the close of business on
the last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed pursuant to the Agreement on the applicable Distribution Date in
respect of the Class of Certificates to which this Certificate belongs; provided
that the initial Record Date will be the Closing Date. All distributions made
under the Agreement in respect of this Certificate will be made by the
Certificate Administrator by wire transfer in immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Certificate Administrator with written wiring instructions no less than five
(5) Business Days prior to (or, in the case of the first such distribution, no
later than) the Record Date for such distribution (which wiring instructions may
be in the form of a standing order applicable to all subsequent distributions as
well), or otherwise by check mailed to the address of such Certificateholder
appearing in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate (determined without regard to any
possible future reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate) will be made after due notice
by the Certificate Administrator of the pendency of such distribution and only
upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar appointed as provided in the Agreement or such other
location as may be specified in such notice. Also notwithstanding the foregoing,
any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appeared in the Certificate Register or to any
such other address of which the Certificate Administrator is subsequently
notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account, the Distribution Account
and, if established, the Pool REO Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
[FOR BOOK-ENTRY ONLY] Notwithstanding the foregoing, for so long as
this Certificate is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC, transfers of interests
in this Certificate shall be made through the book-entry facilities of DTC.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Certificate Administrator (except that such Holder may provide any such
information obtained by it to any other Person that holds or is contemplating
the purchase of this Certificate or an interest herein, provided that such other
Person confirms in writing such ownership interest or prospective ownership
interest and agrees to keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Administrator, the Certificate Registrar and any agent of any of
them may treat the Person in whose name this Certificate is registered as of the
related Record Date as the owner hereof for the purpose of receiving
distributions pursuant to the Agreement and may treat the person in whose name
this Certificate is registered as of the relevant date of determination as owner
of this Certificate for all other purposes whatsoever, and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Registrar or any such agent shall be affected by notice to the
contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier to occur of (i) the final
payment (or any advance with respect thereto) on or other liquidation of the
last Trust Mortgage Loan or REO Property remaining in the Trust Fund, (ii) the
purchase by the Master Servicer, the Special Servicer or the Plurality
Subordinate Certificateholder at a price determined as provided in the Agreement
of all Trust Mortgage Loans and any REO Properties (or, if specified in the
Agreement with respect to any REO Property, the Trust's interests therein)
remaining in the Trust and (iii) the exchange by the Sole Certificate Owner of
certain remaining outstanding Classes of Certificates (as described below) for
all the Mortgage Loans and REO Properties (or, if specified in the Agreement
with respect to any REO Property, the Trust's interests therein) in the Trust
Fund. The Agreement permits, but does not require, the Master Servicer, the
Special Servicer or the Plurality Subordinate Certificateholder to purchase from
the Trust all Mortgage Loans and any REO Properties (or, if specified in the
Agreement with respect to any REO Property, the Trust's interests therein)
remaining therein. The exercise of such right will effect early retirement of
the Certificates; however, such right to purchase is subject to the aggregate
Stated Principal Balance of the Mortgage Pool at the time of purchase being less
than approximately 1.0% of the Initial Pool Balance. In addition, following the
date on which the total principal balance of the X-0, X-0, X-0, X-0XX, X-0X,
X-XX, X-0, A-4FC, Class AM, Class AJ, Class B, Class C and Class D Certificates
is reduced to zero, any single Holder of each outstanding Class of Certificates
(other than the Class Z, Class R-I and Class R-II Certificates) may, subject to
such other conditions as may be set forth in the Agreement, exchange those
Certificates for all Mortgage Loans and REO Properties (or, if specified in the
Agreement with respect to any REO Property, the Trust's interests therein)
remaining in the Trust Fund at the time of the exchange.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Certificate
Administrator and the Trustee thereunder and the rights of the
Certificateholders thereunder, at any time by the Master Servicer, the Special
Servicer, the Trustee and the Certificate Administrator with the consent of the
Holders of Certificates entitled to at least 66-2/3% of the Voting Rights. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of each of REMIC I and
REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:_________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-1] [A-2] [A-3] [A-3FL] [A-1A] [A-SB]
[A-4] [A-4FC] Certificates referred to in the within-mentioned Agreement.
Dated: December 28, 2005
LASALLE BANK NATIONAL ASSOCIATION
as Authenticating Agent
By:_________________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto____________________________________________________
____________________________________________________________________
____________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to
the above named assignee and delivery of such Commercial Mortgage
Pass-Through Certificate to the following address:__________________
____________________________________________________________________
____________________________________________________________________
Dated:
--------------------------------------------
Signature by or on behalf of Assignor
--------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to_______________________
for the account of_________________________________________________.
Distributions made by check (such check to be made payable to_______
______________________) and all applicable statements and notices
should be mailed to_________________________________________________
____________________________________________________________________
___________________________________________________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its
agent.
EXHIBIT A-2
[RESERVED]
EXHIBIT A-3
FORM OF CLASS X CERTIFICATE
XXXXXXX XXXXX MORTGAGE TRUST 2005-LC1
CLASS X COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2005-LC1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust") whose assets consist primarily of a pool (the
"Mortgage Pool") of commercial, multifamily and manufactured housing community
mortgage loans (the "Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Pass-Through Rate: Variable Initial Certificate Notional Amount of
this Certificate as of the Closing Date:
$[ ]
Date of Pooling and Servicing Original Class X Notional Amount of all
Agreement: December 1, 2005 the Class X Certificates as of the
Closing Date:
$1,546,255,942
Closing Date: December 28, 0000 Xxxxxxxxx unpaid principal balance of the
Mortgage Pool as of the Cut-off Date,
First Distribution Date: January 12, after deducting payments of principal due
2006 on or before such date (the "Initial Pool
Balance"): $1,546,255,943
Master Servicer: GMAC Commercial Trustee: Xxxxx Fargo Bank, N.A.
Mortgage Corporation
Special Servicer: LNR Partners, Inc. Certificate Administrator: LaSalle Bank
National Association
Certificate No. X-[1][2][3][4] CUSIP No.: [ ]
[FOR BOOK ENTRY CERTIFICATES:] UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST CORPORATION, A NEW YORK
CORPORATION ("DTC"), TO THE DEPOSITOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., GMAC COMMERCIAL MORTGAGE CORPORATION, LNR
PARTNERS, INC., XXXXX FARGO BANK, N.A., LASALLE BANK NATIONAL ASSOCIATION OR ANY
OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS
ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY
OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE NOTIONAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE. THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL
BALANCE AND DOES NOT ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF
PRINCIPAL. THE HOLDER HEREOF WILL BE ENTITLED TO DISTRIBUTIONS OF INTEREST
ACCRUED AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN ON
THE CERTIFICATE NOTIONAL AMOUNT OF THIS CERTIFICATE, WHICH AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE.
[FOR REG S:] [PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE LATER OF (A) THE
COMMENCEMENT OF THE OFFERING TO PERSONS OTHER THAN DISTRIBUTORS IN RELIANCE ON
REGULATION S UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND (B) THE DATE OF
CLOSING OF THE OFFERING, THIS CERTIFICATE 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.]
This certifies that [CEDE & CO.] [ ]is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
notional amount of this Certificate (its "Certificate Notional Amount") as of
the Closing Date by the aggregate notional amount of all the Certificates of the
same Class as this Certificate (their "Class Notional Amount") as of the Closing
Date) in that certain beneficial ownership interest in the Trust evidenced by
all the Certificates of the same Class as this Certificate. The Trust was
created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), between Xxxxxxx Xxxxx
Mortgage Investors, Inc., as depositor (the "Depositor", which term includes any
successor entity under the Agreement), GMAC Commercial Mortgage Corporation, as
master servicer (the "Master Servicer", which term includes any successor entity
under the Agreement), LNR Partners, Inc., as special servicer (the "Special
Servicer", which term includes any successor entity under the Agreement), Xxxxx
Fargo Bank, N.A., as trustee (the "Trustee", which term includes any successor
entity under the Agreement), and LaSalle Bank National Association, as
certificate administrator (the "Certificate Administrator", which term includes
any successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound. In the event of any conflict between any provision of this
Certificate and any provision of the Agreement, such provision of this
Certificate shall be superseded to the extent of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made
on the 12th day of any given month, or if the 12th day is not a Business Day, on
the next succeeding Business Day (each, a "Distribution Date"). Distributions
will be made commencing on the first Distribution Date specified above, to the
Person in whose name this Certificate is registered at the close of business on
the last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed pursuant to the Agreement on the applicable Distribution Date in
respect of the Class of Certificates to which this Certificate belongs; provided
that the initial Record Date will be the Closing Date. All distributions made
under the Agreement in respect of this Certificate will be made by the
Certificate Administrator by wire transfer in immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Certificate Administrator with written wiring instructions no less than five
(5) Business Days prior to (or, in the case of the first such distribution, no
later than) the Record Date for such distribution (which wiring instructions may
be in the form of a standing order applicable to all subsequent distributions as
well), or otherwise by check mailed to the address of such Certificateholder
appearing in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate will be made after due notice by the
Certificate Administrator of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the offices of the Certificate
Registrar appointed as provided in the Agreement or such other location as may
be specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account, the Distribution Account
and, if established, the Pool REO Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No direct or indirect transfer, sale, pledge, hypothecation or other
disposition (each, a "Transfer") of this Certificate or any interest herein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If this Certificate constitutes a Definitive Certificate and a
Transfer hereof is to be made without registration under the Securities Act
(other than in connection with the initial issuance of the Certificates or a
Transfer of this Certificate by the Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated or any of their respective Affiliates or, if this Certificate
is a Global Certificate, a Transfer of this Certificate to a successor
Depository or to the applicable Certificate Owner in accordance with Section
5.03 of the Agreement), then the Certificate Registrar shall refuse to register
such Transfer unless it receives (and, upon receipt, may conclusively rely upon)
either: (i) a certificate from the Certificateholder desiring to effect such
Transfer substantially in the form attached as Exhibit E-1 to the Agreement and
a certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit E-2A to the Agreement or as Exhibit E-2B
to the Agreement; or (ii) an Opinion of Counsel satisfactory to the Certificate
Administrator to the effect that such Transferee is an Institutional Accredited
Investor or a Qualified Institutional Buyer and such Transfer may be made
without registration under the Securities Act (which Opinion of Counsel shall
not be an expense of the Trust Fund or of the Depositor, the Master Servicer,
the Special Servicer, the Trustee or the Certificate Registrar in their
respective capacities as such), together with the written certification(s) as to
the facts surrounding such Transfer from the Certificateholder desiring to
effect such Transfer and/or such Certificateholder's prospective Transferee on
which such Opinion of Counsel is based. If any Transferee of this Certificate
does not, in connection with the subject Transfer, deliver to the Certificate
Registrar one of the certifications described in clause (i) of the preceding
sentence or the Opinion of Counsel described in clause (ii) of the preceding
sentence, then such Transferee shall be deemed to have represented and warranted
that all the certifications set forth in either Exhibit E-2A or Exhibit E-2B
attached to the Agreement are, with respect to the subject Transfer, true and
correct.
[FOR RULE 144A:] [If this Certificate constitutes a Rule 144A Global
Certificate and a Transfer of any interest herein is to be made without
registration under the Securities Act (other than in connection with the initial
issuance of the Certificates or a Transfer of any interest herein by the
Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, or any of their
respective Affiliates), then the Certificate Owner desiring to effect such
Transfer shall be required to obtain either: (i) a certificate from such
Certificate Owner's prospective Transferee substantially in the form attached as
Exhibit E-2C to the Agreement, or (ii) an Opinion of Counsel to the effect that
such Transferee is a Qualified Institutional Buyer and such Transfer may be made
without registration under the Securities Act. Except as discussed below, an
interest in a Rule 144A Global Certificate for any Class of Book-Entry
Non-Registered Certificates may not be transferred to any Person who takes
delivery other than in the form of an interest in such Rule 144A Global
Certificate. If this Certificate constitutes a Rule 144A Global Certificate and
any Transferee of an interest herein does not, in connection with the subject
Transfer, deliver to the Transferor the Opinion of Counsel or the certification
described in the second preceding sentence, then such Transferee shall be deemed
to have represented and warranted that all the certifications set forth in
Exhibit E-2C attached to the Agreement are, with respect to the subject
Transfer, true and correct.
Notwithstanding the preceding paragraph, any interest in a Rule 144A
Global Certificate with respect to any Class of Book-Entry Non-Registered
Certificates may be transferred by any Certificate Owner holding such interest
to any Institutional Accredited Investor (other than a Qualified Institutional
Buyer) that takes delivery in the form of a Definitive Certificate of the same
Class as such Rule 144A Global Certificate upon delivery to the Certificate
Registrar and the Certificate Administrator of (i) such certifications and/or
opinions as are contemplated by the third preceding paragraph, (ii) a
certification from such Certificate Owner to the effect that it is the lawful
owner of the beneficial interest being transferred and (iii) such written orders
and instructions as are required under the applicable procedures of the
Depository to direct the Certificate Administrator to debit the account of a
Depository Participant by the denomination of the transferred interests in such
Rule 144A Global Certificate. Upon delivery to the Certificate Registrar of such
certifications and/or opinions and such orders and instructions, the Certificate
Administrator, subject to and in accordance with the applicable procedures of
the Depository, shall reduce the denomination of the subject Rule 144A Global
Certificate by the denomination of the transferred interests in such Rule 144A
Global Certificate, and shall cause a Definitive Certificate of the same Class
as such Rule 144A Global Certificate, and in a denomination equal to the
reduction in the denomination of such Rule 144A Global Certificate, to be
executed, authenticated and delivered in accordance with the Agreement to the
applicable Transferee.]
[FOR REG S:] [If this Certificate constitutes a Regulation S Global
Certificate and a Transfer of any interest herein is to be made without
registration under the Securities Act (other than in connection with the initial
issuance of the Certificates or a Transfer of any interest herein by the
Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, or any of their
respective Affiliates), then the Certificate Owner desiring to effect such
Transfer shall be required to obtain a certificate from such Certificate Owner's
prospective Transferee substantially in the form attached as Exhibit E-2D to the
Agreement to the effect that such Transferee is not a United States Person. If
this Certificate constitutes a Regulation S Global Certificate and any
Transferee of an interest herein does not, in connection with the subject
Transfer, deliver to the Transferor the certification described in the second
preceding sentence, then such Transferee shall be deemed to have represented and
warranted that all the certifications set forth in Exhibit E-2D attached to the
Agreement are, with respect to the subject Transfer, true and correct.
Notwithstanding the preceding paragraph, any interest in a
Regulation S Global Certificate for a Class of Book-Entry Non-Registered
Certificates may be transferred to any Qualified Institutional Buyer that takes
delivery in the form of a beneficial interest in the Rule 144A Global
Certificate for such Class of Certificates, provided that the Certificate Owner
desiring to effect such transfer (i) complies with the requirements for
Transfers of interests in such Rule 144A Global Certificate set forth in the
Section 5.02 of the Agreement and (ii) delivers or causes to be delivered to the
Certificate Registrar and the Certificate Administrator (A) a certificate from
such Certificate Owner confirming its ownership of the beneficial interests in
the subject Class of Book-Entry Non-Registered Certificates to be transferred,
(B) a copy of the certificate or Opinion of Counsel to be obtained by such
Certificate Owner from its prospective Transferee in accordance with Section
5.02(b) of the Agreement and (C) such written orders and instructions as are
required under the applicable procedures of the Depository, Clearstream and
Euroclear to direct the Certificate Administrator to debit the account of a
Depository Participant by a denomination of interests in such Regulation S
Global Certificate, and credit the account of a Depository Participant by a
denomination of interests in such Rule 144A Global Certificate, that is equal to
the denomination of beneficial interests in the subject Class of Book-Entry
Non-Registered Certificates to be transferred. Upon delivery to the Certificate
Registrar and the Certificate Administrator of such certification(s) and/or
Opinion of Counsel and such orders and instructions, the Certificate
Administrator, subject to and in accordance with the applicable procedures of
the Depository, shall reduce the denomination of the Regulation S Global
Certificate in respect of the subject Class of Book-Entry Non-Registered
Certificates, and increase the denomination of the Rule 144A Global Certificate
for such Class of Certificates, by the denomination of the beneficial interest
in such Class of Certificates specified in such orders and instructions.
Also notwithstanding the foregoing, any interest in a Global
Certificate with respect to any Class of Book-Entry Non-Registered Certificates
may be transferred by any Certificate Owner holding such interest to any
Institutional Accredited Investor (other than a Qualified Institutional Buyer)
that takes delivery in the form of a Definitive Certificate of the same Class as
such Global Certificate upon delivery to the Certificate Registrar and the
Certificate Administrator of (i) such certifications and/or opinions as are
contemplated by Section 5.02 of the Agreement and (ii) such written orders and
instructions as are required under the applicable procedures of the Depository
to direct the Certificate Administrator to debit the account of a Depository
Participant by the denomination of the transferred interests in such Global
Certificate. Upon delivery to the Certificate Registrar and the Certificate
Administrator of the certifications and/or opinions contemplated by Section 5.02
of the Agreement, the Certificate Administrator, subject to and in accordance
with the applicable procedures of the Depository, shall reduce the denomination
of the subject Global Certificate by the denomination of the transferred
interests in such Global Certificate, and shall cause a Definitive Certificate
of the same Class as such Global Certificate, and in a denomination equal to the
reduction in the denomination of such Global Certificate, to be executed,
authenticated and delivered in accordance with this Agreement to the applicable
Transferee.]
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class of Certificates to which this
Certificate belongs, under the Securities Act or any other securities law or to
take any action not otherwise required under the Agreement to permit the
Transfer of this Certificate or any interest herein without such registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
Transfer of this Certificate or any interest herein shall, and does hereby agree
to, indemnify the Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
Countrywide Securities Corporation, the Trustee, the Certificate Administrator,
the Master Servicer, the Special Servicer, the Certificate Registrar and their
respective Affiliates against any liability that may result if such Transfer is
not exempt from the registration and/or qualification requirements of the
Securities Act and any applicable state securities laws or is not made in
accordance with such federal and state laws.
No Transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or the Code (each, a "Plan"), or (B) any Person who is directly
or indirectly purchasing this Certificate or such interest herein on behalf of,
as named fiduciary of, as trustee of, or with assets of a Plan, if the purchase
and holding of this Certificate or such interest herein by the prospective
Transferee would result in a violation of Section 406 or 407 of ERISA or Section
4975 of the Code or would result in the imposition of an excise tax under
Section 4975 of the Code. Except in connection with the initial issuance of the
Certificates or any Transfer of this Certificate or any interest herein by the
Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated or any of their
respective Affiliates or, if this Certificate constitutes a Global Certificate,
any Transfer of this Certificate to a successor Depository or to the applicable
Certificate Owner in accordance with Section 5.03 of the Agreement, the
Certificate Registrar shall refuse to register the Transfer of this Certificate
unless it has received from the prospective Transferee, and, if this Certificate
constitutes a Global Certificate, any Certificate Owner transferring an interest
herein shall be required to obtain from its prospective Transferee, one of the
following: (i) a certification to the effect that such prospective Transferee is
not a Plan and is not directly or indirectly purchasing this Certificate or such
interest herein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan; or (ii) a certification to the effect that the purchase and
holding of this Certificate or such interest herein by such prospective
Transferee is exempt from the prohibited transaction provisions of Sections 406
and 407 of ERISA and the excise taxes imposed on such prohibited transactions by
Section 4975 of the Code, by reason of Sections I and III of Prohibited
Transaction Class Exemption 95-60; or (iii) if this Certificate is rated in one
of the four highest generic rating categories by either Rating Agency, and this
Certificate or an interest herein is being acquired by or on behalf of a Plan in
reliance on Prohibited Transaction Exemption 90-29 or 2000-55, a certification
to the effect that such Plan (X) is an accredited investor as defined in Rule
501(a)(1) of Regulation D of the Securities Act, (Y) is not sponsored (within
the meaning of Section 3(16)(B) of ERISA) by the Trustee, the Depositor, any
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Certificate
Administrator, any Sub-Servicer, any Exemption-Favored Party or any Mortgagor
with respect to Mortgage Loans constituting more than 5% of the aggregate
unamortized principal balance of all the Mortgage Loans determined as of the
Closing Date, or by any Affiliate of such Person, and (Z) agrees that it will
obtain from each of its Transferees that are Plans a written representation that
such Transferee, if a Plan, satisfies the requirements of the immediately
preceding clauses (X) and (Y), together with a written agreement that such
Transferee will obtain from each of its Transferees that are Plans a similar
written representation regarding satisfaction of the requirements of the
immediately preceding clauses (X) and (Y); or (iv) a certification of facts and
an Opinion of Counsel which otherwise establish to the reasonable satisfaction
of the Certificate Administrator or such Certificate Owner, as the case may be,
that such Transfer will not result in a violation of Section 406 or 407 of ERISA
or Section 4975 of the Code or result in the imposition of an excise tax under
Section 4975 of the Code. If any Transferee of this Certificate or any interest
herein does not, in connection with the subject Transfer, deliver to the
Certificate Registrar (if this Certificate constitutes a Definitive Certificate)
or the Transferor (if this Certificate constitutes a Global Certificate) a
certification and/or Opinion of Counsel as required by the preceding sentence,
then such Transferee shall be deemed to have represented and warranted that
either: (i) such Transferee is not a Plan and is not directly or indirectly
purchasing this Certificate or any interest herein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan; or (ii) the purchase and
holding of this Certificate or such interest herein by such Transferee is exempt
from the prohibited transaction provisions of Sections 406 and 407 of ERISA and
the excise taxes imposed on such prohibited transactions by Section 4975 of the
Code.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Certificate Administrator or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
[FOR BOOK ENTRY CERTIFICATES:] Notwithstanding the foregoing, for so
long as this Certificate is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC, transfers of
interests in this Certificate shall be made through the book-entry facilities of
DTC.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Certificate Administrator (except that such Holder may provide any such
information obtained by it to any other Person that holds or is contemplating
the purchase of this Certificate or an interest herein, provided that such other
Person confirms in writing such ownership interest or prospective ownership
interest and agrees to keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Administrator, the Certificate Registrar and any agent of any of
them may treat the Person in whose name this Certificate is registered as of the
related Record Date as the owner hereof for the purpose of receiving
distributions pursuant to the Agreement and may treat the person in whose name
this Certificate is registered as of the relevant date of determination as owner
of this Certificate for all other purposes whatsoever, and none of the
Depositor, the Master Servicer, the Special Servicer, the Certificate
Administrator, the Trustee, the Certificate Registrar or any such agent shall be
affected by notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier to occur of (i) the final
payment (or any advance with respect thereto) on or other liquidation of the
last Trust Mortgage Loan or REO Property remaining in the Trust Fund, (ii) the
purchase by the Master Servicer, the Special Servicer or the Plurality
Subordinate Certificateholder at a price determined as provided in the Agreement
of all Trust Mortgage Loans and any REO Properties (or, if specified in the
Agreement with respect to any REO Property, the Trust's interests therein)
remaining in the Trust and (iii) the exchange by the Sole Certificate Owner of
certain remaining outstanding Classes of Certificates (as described below) for
all the Mortgage Loans and REO Properties (or, if specified in the Agreement
with respect to any REO Property, the Trust's interests therein) in the Trust
Fund. The Agreement permits, but does not require, the Master Servicer, the
Special Servicer or the Plurality Subordinate Certificateholder to purchase from
the Trust all Mortgage Loans and any REO Properties (or, if specified in the
Agreement with respect to any REO Property, the Trust's interests therein)
remaining therein. The exercise of such right will effect early retirement of
the Certificates; however, such right to purchase is subject to the aggregate
Stated Principal Balance of the Mortgage Pool at the time of purchase being less
than approximately 1.0% of the Initial Pool Balance. In addition, following the
date on which the total principal balance of the X-0, X-0, X-0, X-0XX, X-0X,
X-XX, X-0, A-4FC, Class AM, Class AJ, Class B, Class C and Class D Certificates
is reduced to zero, any single Holder of each outstanding Class of Certificates
(other than the Class Z, Class R-I and Class R-II Certificates) may, subject to
such other conditions as may be set forth in the Agreement, exchange those
Certificates for all Mortgage Loans and REO Properties (or, if specified in the
Agreement with respect to any REO Property, the Trust's interests therein)
remaining in the Trust Fund at the time of the exchange.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Certificate
Administrator and the Trustee thereunder and the rights of the
Certificateholders thereunder, at any time by the Master Servicer, the Special
Servicer, the Trustee and the Certificate Administrator with the consent of the
Holders of Certificates entitled to at least 66-2/3% of the Voting Rights. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of each of REMIC I and
REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:_________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class Certificates referred to in the
within-mentioned Agreement.
Dated: December 28, 2005
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:_________________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto____________________________________________________
____________________________________________________________________
____________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to
the above named assignee and delivery of such Commercial Mortgage
Pass-Through Certificate to the following address:__________________
____________________________________________________________________
____________________________________________________________________
Dated:
--------------------------------------------
Signature by or on behalf of Assignor
--------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to_______________________
for the account of_________________________________________________.
Distributions made by check (such check to be made payable to_______
______________________) and all applicable statements and notices
should be mailed to_________________________________________________
____________________________________________________________________
___________________________________________________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its
agent.
EXHIBIT A-4
FORM OF CLASS AM, AJ, B, C AND D CERTIFICATES
XXXXXXX XXXXX MORTGAGE TRUST 2005-LC1
CLASS [AM] [AJ] [B] [C] [D] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2005-LC1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust") whose assets consist primarily of a pool (the
"Mortgage Pool") of commercial, multifamily and manufactured housing community
mortgage loans (the "Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Pass-Through Rate: Variable Initial Certificate Principal Balance of
this Certificate as of the Closing Date:
$[_______________]
Date of Pooling and Servicing Class Principal Balance of all the Class
Agreement: December 1, 2005 [AM] [AJ] [B] [C] [D] Certificates as of
the Closing Date:
$[____________]
Closing Date: December 28, 0000 Xxxxxxxxx unpaid principal balance of the
Mortgage Pool as of the Cut-off Date,
First Distribution Date: January 12, after deducting payments of principal due
2006 on or before such date (the "Initial Pool
Balance"): $1,546,255,943
Master Servicer: GMAC Commercial Trustee: Xxxxx Fargo Bank, N.A.
Mortgage Corporation
Special Servicer: LNR Partners, Inc. Certificate Registrar: LaSalle Bank
National Association
Certificate No. [AM] [AJ] [B] [C] [D] CUSIP No.: [ ]
-[1]
[FOR BOOK ENTRY CERTIFICATES:] UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST CORPORATION, A NEW YORK
CORPORATION ("DTC"), TO THE DEPOSITOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, IF THE PURCHASE OR HOLDING OF THIS CERTIFICATE OR SUCH INTEREST
HEREIN WOULD RESULT IN A VIOLATION OF SECTION 406 OR 407 OF ERISA OR SECTION
4975 OF THE CODE OR WOULD RESULT IN THE IMPOSITION OF AN EXCISE TAX UNDER
SECTION 4975 OF THE CODE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., GMAC COMMERCIAL MORTGAGE CORPORATION, LNR
PARTNERS, INC., XXXXX FARGO BANK, N.A., LASALLE BANK NATIONAL ASSOCIATION, OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that [CEDE & CO.] [ ] is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Closing Date by the aggregate principal balance of all the Certificates
of the same Class as this Certificate (their "Class Principal Balance") as of
the Closing Date) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), between Xxxxxxx
Xxxxx Mortgage Investors, Inc., as depositor (the "Depositor", which term
includes any successor entity under the Agreement), GMAC Commercial Mortgage
Corporation, as master servicer (the "Master Servicer", which term includes any
successor entity under the Agreement), LNR Partners, Inc., as special servicer
(the "Special Servicer", which term includes any successor entity under the
Agreement), Xxxxx Fargo Bank, N.A., as trustee (the "Trustee", which term
includes any successor entity under the Agreement), and LaSalle Bank National
Association, as certificate administrator (the "Certificate Administrator",
which term includes any successor entity under the Agreement), a summary of
certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound. In the event of any conflict between
any provision of this Certificate and any provision of the Agreement, such
provision of this Certificate shall be superseded to the extent of such
inconsistency.
Pursuant to the terms of the Agreement, distributions will be made
on the 12th day of any given month, or if the 12th day is not a Business Day, on
the next succeeding Business Day (each, a "Distribution Date"). Distributions
will be made commencing on the first Distribution Date specified above, to the
Person in whose name this Certificate is registered at the close of business on
the last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed pursuant to the Agreement on the applicable Distribution Date in
respect of the Class of Certificates to which this Certificate belongs; provided
that the initial Record Date will be the Closing Date. All distributions made
under the Agreement in respect of this Certificate will be made by the
Certificate Administrator by wire transfer in immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Certificate Administrator with written wiring instructions no less than five
(5) Business Days prior to (or, in the case of the first such distribution, no
later than) the Record Date for such distribution (which wiring instructions may
be in the form of a standing order applicable to all subsequent distributions as
well), or otherwise by check mailed to the address of such Certificateholder
appearing in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate (determined without regard to any
possible future reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate) will be made after due notice
by the Certificate Administrator of the pendency of such distribution and only
upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar appointed as provided in the Agreement or such other
location as may be specified in such notice. Also notwithstanding the foregoing,
any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appeared in the Certificate Register or to any
such other address of which the Certificate Administrator is subsequently
notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account, the Distribution Account
and, if established, the Pool REO Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
[FOR BOOK-ENTRY ONLY] Notwithstanding the foregoing, for so long as
this Certificate is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC, transfers of interests
in this Certificate shall be made through the book-entry facilities of DTC.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Certificate Administrator (except that such Holder may provide any such
information obtained by it to any other Person that holds or is contemplating
the purchase of this Certificate or an interest herein, provided that such other
Person confirms in writing such ownership interest or prospective ownership
interest and agrees to keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agent of any of them may treat the Person in
whose name this Certificate is registered as of the related Record Date as the
owner hereof for the purpose of receiving distributions pursuant to the
Agreement and may treat the person in whose name this Certificate is registered
as of the relevant date of determination as owner of this Certificate for all
other purposes whatsoever, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Certificate Registrar or any such agent shall
be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier to occur of (i) the final
payment (or any advance with respect thereto) on or other liquidation of the
last Trust Mortgage Loan or REO Property remaining in the Trust Fund, (ii) the
purchase by the Master Servicer, the Special Servicer or the Plurality
Subordinate Certificateholder at a price determined as provided in the Agreement
of all Trust Mortgage Loans and any REO Properties (or, if specified in the
Agreement with respect to any REO Property, the Trust's interests therein)
remaining in the Trust and (iii) the exchange by the Sole Certificate Owner of
certain remaining outstanding Classes of Certificates (as described below) for
all the Mortgage Loans and REO Properties (or, if specified in the Agreement
with respect to any REO Property, the Trust's interests therein) in the Trust
Fund. The Agreement permits, but does not require, the Master Servicer, the
Special Servicer or the Plurality Subordinate Certificateholder to purchase from
the Trust all Mortgage Loans and any REO Properties (or, if specified in the
Agreement with respect to any REO Property, the Trust's interests therein)
remaining therein. The exercise of such right will effect early retirement of
the Certificates; however, such right to purchase is subject to the aggregate
Stated Principal Balance of the Mortgage Pool at the time of purchase being less
than approximately 1.0% of the Initial Pool Balance. In addition, following the
date on which the total principal balance of the X-0, X-0, X-0, X-0XX, X-0X,
X-XX, X-0, A-4FC, Class AM, Class AJ, Class B, Class C and Class D Certificates
is reduced to zero, any single Holder of each outstanding Class of Certificates
(other than the Class Z, Class R-I and Class R-II Certificates) may, subject to
such other conditions as may be set forth in the Agreement, exchange those
Certificates for all Mortgage Loans and REO Properties (or, if specified in the
Agreement with respect to any REO Property, the Trust's interests therein)
remaining in the Trust Fund at the time of the exchange.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Certificate
Administrator and the Trustee thereunder and the rights of the
Certificateholders thereunder, at any time by the Master Servicer, the Special
Servicer, the Trustee and the Certificate Administrator with the consent of the
Holders of Certificates entitled to at least 66-2/3% of the Voting Rights. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of each of REMIC I and
REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:_________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [AM] [AJ] [B] [C] [D] Certificates referred
to in the within-mentioned Agreement.
Dated: December 28, 2005
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:_________________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto____________________________________________________
____________________________________________________________________
____________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to
the above named assignee and delivery of such Commercial Mortgage
Pass-Through Certificate to the following address:__________________
____________________________________________________________________
____________________________________________________________________
Dated:
--------------------------------------------
Signature by or on behalf of Assignor
--------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to_______________________
for the account of_________________________________________________.
Distributions made by check (such check to be made payable to_______
______________________) and all applicable statements and notices
should be mailed to_________________________________________________
____________________________________________________________________
___________________________________________________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its
agent.
EXHIBIT A-5
FORM OF CLASS E, F, G AND H CERTIFICATES
XXXXXXX XXXXX MORTGAGE TRUST 2005-LC1
CLASS [E] [F] [G] [H] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2005-LC1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of commercial, multifamily and manufactured housing community
mortgage loans (the "Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Pass-Through Rate: Variable Initial Certificate Principal Balance of
this Certificate as of the Closing Date:
$_________
Date of Pooling and Servicing Class Principal Balance of all the Class
Agreement: December 1, 2005 [E] [F] [G] [H] Certificates as of the
Closing Date:
$__________
Closing Date: December 28, 0000 Xxxxxxxxx unpaid principal balance of
the Mortgage Pool as of the Cut-off
First Distribution Date: January 12, Date, after deducting payments of
2005 principal due on or before such date
(the "Initial Pool Balance"):
$1,546,255,943
Master Servicer: GMAC Commercial Trustee: Xxxxx Fargo Bank, N.A.
Mortgage Corporation
Special Servicer: LNR Partners, Inc. Certificate Administrator: LaSalle Bank
National Association
Certificate No.[E] [F] [G] [H]-[1] CUSIP No.: [ ]
[FOR BOOK ENTRY CERTIFICATES:] UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST CORPORATION, A NEW YORK
CORPORATION ("DTC"), TO THE DEPOSITOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., GMAC COMMERCIAL MORTGAGE CORPORATION, LNR
PARTNERS, INC., XXXXX FARGO BANK, N.A., LASALLE BANK NATIONAL ASSOCIATION OR ANY
OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS
ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY
OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
[FOR REG S:] [PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE LATER OF (A) THE
COMMENCEMENT OF THE OFFERING TO PERSONS OTHER THAN DISTRIBUTORS IN RELIANCE ON
REGULATION S UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND (B) THE DATE OF
CLOSING OF THE OFFERING, THIS CERTIFICATE 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.]
This certifies that [CEDE & CO.] [ ]is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Closing Date by the aggregate principal balance of all the Certificates
of the same Class as this Certificate (their "Class Principal Balance") as of
the Closing Date) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), between Xxxxxxx
Xxxxx Mortgage Investors, Inc., as depositor (the "Depositor", which term
includes any successor entity under the Agreement), GMAC Commercial Mortgage
Corporation, as master servicer (the "Master Servicer", which term includes any
successor entity under the Agreement), LNR Partners, Inc., as special servicer
(the "Special Servicer", which term includes any successor entity under the
Agreement), Xxxxx Fargo Bank, N.A., as trustee (the "Trustee", which term
includes any successor entity under the Agreement), and LaSalle Bank National
Association, as certificate administrator (the "Certificate Administrator",
which term includes any successor entity under the Agreement), a summary of
certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound. In the event of any conflict between
any provision of this Certificate and any provision of the Agreement, such
provision of this Certificate shall be superseded to the extent of such
inconsistency.
Pursuant to the terms of the Agreement, distributions will be made
on the 12th day of any given month, or if the 12th day is not a Business Day, on
the next succeeding Business Day (each, a "Distribution Date"). Distributions
will be made commencing on the first Distribution Date specified above, to the
Person in whose name this Certificate is registered at the close of business on
the last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed pursuant to the Agreement on the applicable Distribution Date in
respect of the Class of Certificates to which this Certificate belongs; provided
that the initial Record Date will be the Closing Date. All distributions made
under the Agreement in respect of this Certificate will be made by the
Certificate Administrator by wire transfer in immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Certificate Administrator with written wiring instructions no less than five
(5) Business Days prior to (or, in the case of the first such distribution, no
later than) the Record Date for such distribution (which wiring instructions may
be in the form of a standing order applicable to all subsequent distributions as
well), or otherwise by check mailed to the address of such Certificateholder
appearing in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate (determined without regard to any
possible future reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate) will be made after due notice
by the Certificate Administrator of the pendency of such distribution and only
upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar appointed as provided in the Agreement or such other
location as may be specified in such notice. Also notwithstanding the foregoing,
any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appeared in the Certificate Register or to any
such other address of which the Certificate Administrator is subsequently
notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account, the Distribution Account
and, if established, the Pool REO Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No direct or indirect transfer, sale, pledge, hypothecation or other
disposition (each, a "Transfer") of this Certificate or any interest herein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If this Certificate constitutes a Definitive Certificate and a
Transfer hereof is to be made without registration under the Securities Act
(other than in connection with the initial issuance of the Certificates or a
Transfer of this Certificate by the Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated or any of their respective Affiliates or, if this Certificate
is a Global Certificate, a Transfer of this Certificate to a successor
Depository or to the applicable Certificate Owner in accordance with Section
5.03 of the Agreement), then the Certificate Registrar shall refuse to register
such Transfer unless it receives (and, upon receipt, may conclusively rely upon)
either: (i) a certificate from the Certificateholder desiring to effect such
Transfer substantially in the form attached as Exhibit E-1 to the Agreement and
a certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit E-2A to the Agreement or as Exhibit E-2B
to the Agreement; or (ii) an Opinion of Counsel satisfactory to the Certificate
Administrator to the effect that such Transferee is an Institutional Accredited
Investor or a Qualified Institutional Buyer and such Transfer may be made
without registration under the Securities Act (which Opinion of Counsel shall
not be an expense of the Trust Fund or of the Depositor, the Master Servicer,
the Special Servicer, the Trustee or the Certificate Registrar in their
respective capacities as such), together with the written certification(s) as to
the facts surrounding such Transfer from the Certificateholder desiring to
effect such Transfer and/or such Certificateholder's prospective Transferee on
which such Opinion of Counsel is based. If any Transferee of this Certificate
does not, in connection with the subject Transfer, deliver to the Certificate
Registrar one of the certifications described in clause (i) of the preceding
sentence or the Opinion of Counsel described in clause (ii) of the preceding
sentence, then such Transferee shall be deemed to have represented and warranted
that all the certifications set forth in either Exhibit E-2A or Exhibit E-2B
attached to the Agreement are, with respect to the subject Transfer, true and
correct.
[FOR RULE 144A:] [If this Certificate constitutes a Rule 144A Global
Certificate and a Transfer of any interest herein is to be made without
registration under the Securities Act (other than in connection with the initial
issuance of the Certificates or a Transfer of any interest herein by the
Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, or any of their
respective Affiliates), then the Certificate Owner desiring to effect such
Transfer shall be required to obtain either: (i) a certificate from such
Certificate Owner's prospective Transferee substantially in the form attached as
Exhibit E-2C to the Agreement, or (ii) an Opinion of Counsel to the effect that
such Transferee is a Qualified Institutional Buyer and such Transfer may be made
without registration under the Securities Act. Except as discussed below, an
interest in a Rule 144A Global Certificate for any Class of Book-Entry
Non-Registered Certificates may not be transferred to any Person who takes
delivery other than in the form of an interest in such Rule 144A Global
Certificate. If this Certificate constitutes a Rule 144A Global Certificate and
any Transferee of an interest herein does not, in connection with the subject
Transfer, deliver to the Transferor the Opinion of Counsel or the certification
described in the second preceding sentence, then such Transferee shall be deemed
to have represented and warranted that all the certifications set forth in
Exhibit E-2C attached to the Agreement are, with respect to the subject
Transfer, true and correct.
Notwithstanding the preceding paragraph, any interest in a Rule 144A
Global Certificate with respect to any Class of Book-Entry Non-Registered
Certificates may be transferred by any Certificate Owner holding such interest
to any Institutional Accredited Investor (other than a Qualified Institutional
Buyer) that takes delivery in the form of a Definitive Certificate of the same
Class as such Rule 144A Global Certificate upon delivery to the Certificate
Registrar and the Certificate Administrator of (i) such certifications and/or
opinions as are contemplated by the third preceding paragraph, (ii) a
certification from such Certificate Owner to the effect that it is the lawful
owner of the beneficial interest being transferred and (iii) such written orders
and instructions as are required under the applicable procedures of the
Depository to direct the Certificate Administrator to debit the account of a
Depository Participant by the denomination of the transferred interests in such
Rule 144A Global Certificate. Upon delivery to the Certificate Registrar of such
certifications and/or opinions and such orders and instructions, the Certificate
Administrator, subject to and in accordance with the applicable procedures of
the Depository, shall reduce the denomination of the subject Rule 144A Global
Certificate by the denomination of the transferred interests in such Rule 144A
Global Certificate, and shall cause a Definitive Certificate of the same Class
as such Rule 144A Global Certificate, and in a denomination equal to the
reduction in the denomination of such Rule 144A Global Certificate, to be
executed, authenticated and delivered in accordance with the Agreement to the
applicable Transferee.]
[FOR REG S:] [If this Certificate constitutes a Regulation S Global
Certificate and a Transfer of any interest herein is to be made without
registration under the Securities Act (other than in connection with the initial
issuance of the Certificates or a Transfer of any interest herein by the
Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, or any of their
respective Affiliates), then the Certificate Owner desiring to effect such
Transfer shall be required to obtain a certificate from such Certificate Owner's
prospective Transferee substantially in the form attached as Exhibit E-2D to the
Agreement to the effect that such Transferee is not a United States Person. If
this Certificate constitutes a Regulation S Global Certificate and any
Transferee of an interest herein does not, in connection with the subject
Transfer, deliver to the Transferor the certification described in the second
preceding sentence, then such Transferee shall be deemed to have represented and
warranted that all the certifications set forth in Exhibit E-2D attached to the
Agreement are, with respect to the subject Transfer, true and correct.
Notwithstanding the preceding paragraph, any interest in a
Regulation S Global Certificate for a Class of Book-Entry Non-Registered
Certificates may be transferred to any Qualified Institutional Buyer that takes
delivery in the form of a beneficial interest in the Rule 144A Global
Certificate for such Class of Certificates, provided that the Certificate Owner
desiring to effect such transfer (i) complies with the requirements for
Transfers of interests in such Rule 144A Global Certificate set forth in the
Section 5.02 of the Agreement and (ii) delivers or causes to be delivered to the
Certificate Registrar and the Certificate Administrator (A) a certificate from
such Certificate Owner confirming its ownership of the beneficial interests in
the subject Class of Book-Entry Non-Registered Certificates to be transferred,
(B) a copy of the certificate or Opinion of Counsel to be obtained by such
Certificate Owner from its prospective Transferee in accordance with Section
5.02(b) of the Agreement and (C) such written orders and instructions as are
required under the applicable procedures of the Depository, Clearstream and
Euroclear to direct the Certificate Administrator to debit the account of a
Depository Participant by a denomination of interests in such Regulation S
Global Certificate, and credit the account of a Depository Participant by a
denomination of interests in such Rule 144A Global Certificate, that is equal to
the denomination of beneficial interests in the subject Class of Book-Entry
Non-Registered Certificates to be transferred. Upon delivery to the Certificate
Registrar and the Certificate Administrator of such certification(s) and/or
Opinion of Counsel and such orders and instructions, the Certificate
Administrator, subject to and in accordance with the applicable procedures of
the Depository, shall reduce the denomination of the Regulation S Global
Certificate in respect of the subject Class of Book-Entry Non-Registered
Certificates, and increase the denomination of the Rule 144A Global Certificate
for such Class of Certificates, by the denomination of the beneficial interest
in such Class of Certificates specified in such orders and instructions.
Also notwithstanding the foregoing, any interest in a Global
Certificate with respect to any Class of Book-Entry Non-Registered Certificates
may be transferred by any Certificate Owner holding such interest to any
Institutional Accredited Investor (other than a Qualified Institutional Buyer)
that takes delivery in the form of a Definitive Certificate of the same Class as
such Global Certificate upon delivery to the Certificate Registrar and the
Certificate Administrator of (i) such certifications and/or opinions as are
contemplated by Section 5.02 of the Agreement and (ii) such written orders and
instructions as are required under the applicable procedures of the Depository
to direct the Certificate Administrator to debit the account of a Depository
Participant by the denomination of the transferred interests in such Global
Certificate. Upon delivery to the Certificate Registrar and the Certificate
Administrator of the certifications and/or opinions contemplated by Section 5.02
of the Agreement, the Certificate Administrator, subject to and in accordance
with the applicable procedures of the Depository, shall reduce the denomination
of the subject Global Certificate by the denomination of the transferred
interests in such Global Certificate, and shall cause a Definitive Certificate
of the same Class as such Global Certificate, and in a denomination equal to the
reduction in the denomination of such Global Certificate, to be executed,
authenticated and delivered in accordance with this Agreement to the applicable
Transferee.]
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class of Certificates to which this
Certificate belongs, under the Securities Act or any other securities law or to
take any action not otherwise required under the Agreement to permit the
Transfer of this Certificate or any interest herein without such registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
Transfer of this Certificate or any interest herein shall, and does hereby agree
to, indemnify the Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
Countrywide Securities Corporation, the Trustee, the Certificate Administrator,
the Master Servicer, the Special Servicer, the Certificate Registrar and their
respective Affiliates against any liability that may result if such Transfer is
not exempt from the registration and/or qualification requirements of the
Securities Act and any applicable state securities laws or is not made in
accordance with such federal and state laws.
No Transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or the Code (each, a "Plan"), or (B) any Person who is directly
or indirectly purchasing this Certificate or such interest herein on behalf of,
as named fiduciary of, as trustee of, or with assets of a Plan, if the purchase
and holding of this Certificate or such interest herein by the prospective
Transferee would result in a violation of Section 406 or 407 of ERISA or Section
4975 of the Code or would result in the imposition of an excise tax under
Section 4975 of the Code. Except in connection with the initial issuance of the
Certificates or any Transfer of this Certificate or any interest herein by the
Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated or any of their
respective Affiliates or, if this Certificate constitutes a Global Certificate,
any Transfer of this Certificate to a successor Depository or to the applicable
Certificate Owner in accordance with Section 5.03 of the Agreement, the
Certificate Registrar shall refuse to register the Transfer of this Certificate
unless it has received from the prospective Transferee, and, if this Certificate
constitutes a Global Certificate, any Certificate Owner transferring an interest
herein shall be required to obtain from its prospective Transferee, one of the
following: (i) a certification to the effect that such prospective Transferee is
not a Plan and is not directly or indirectly purchasing this Certificate or such
interest herein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan; or (ii) a certification to the effect that the purchase and
holding of this Certificate or such interest herein by such prospective
Transferee is exempt from the prohibited transaction provisions of Sections 406
and 407 of ERISA and the excise taxes imposed on such prohibited transactions by
Section 4975 of the Code, by reason of Sections I and III of Prohibited
Transaction Class Exemption 95-60; or (iii) if this Certificate is rated in one
of the four highest generic rating categories by either Rating Agency, and this
Certificate or an interest herein is being acquired by or on behalf of a Plan in
reliance on Prohibited Transaction Exemption 90-29 or 2000-55, a certification
to the effect that such Plan (X) is an accredited investor as defined in Rule
501(a)(1) of Regulation D of the Securities Act, (Y) is not sponsored (within
the meaning of Section 3(16)(B) of ERISA) by the Trustee, the Depositor, any
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Certificate
Administrator, any Sub-Servicer, any Exemption-Favored Party or any Mortgagor
with respect to Mortgage Loans constituting more than 5% of the aggregate
unamortized principal balance of all the Mortgage Loans determined as of the
Closing Date, or by any Affiliate of such Person, and (Z) agrees that it will
obtain from each of its Transferees that are Plans a written representation that
such Transferee, if a Plan, satisfies the requirements of the immediately
preceding clauses (X) and (Y), together with a written agreement that such
Transferee will obtain from each of its Transferees that are Plans a similar
written representation regarding satisfaction of the requirements of the
immediately preceding clauses (X) and (Y); or (iv) a certification of facts and
an Opinion of Counsel which otherwise establish to the reasonable satisfaction
of the Certificate Administrator or such Certificate Owner, as the case may be,
that such Transfer will not result in a violation of Section 406 or 407 of ERISA
or Section 4975 of the Code or result in the imposition of an excise tax under
Section 4975 of the Code. If any Transferee of this Certificate or any interest
herein does not, in connection with the subject Transfer, deliver to the
Certificate Registrar (if this Certificate constitutes a Definitive Certificate)
or the Transferor (if this Certificate constitutes a Global Certificate) a
certification and/or Opinion of Counsel as required by the preceding sentence,
then such Transferee shall be deemed to have represented and warranted that
either: (i) such Transferee is not a Plan and is not directly or indirectly
purchasing this Certificate or any interest herein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan; or (ii) the purchase and
holding of this Certificate or such interest herein by such Transferee is exempt
from the prohibited transaction provisions of Sections 406 and 407 of ERISA and
the excise taxes imposed on such prohibited transactions by Section 4975 of the
Code.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Certificate Administrator or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
[FOR BOOK ENTRY CERTIFICATES:] Notwithstanding the foregoing, for so
long as this Certificate is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC, transfers of
interests in this Certificate shall be made through the book-entry facilities of
DTC.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Certificate Administrator (except that such Holder may provide any such
information obtained by it to any other Person that holds or is contemplating
the purchase of this Certificate or an interest herein, provided that such other
Person confirms in writing such ownership interest or prospective ownership
interest and agrees to keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Administrator, the Certificate Registrar and any agent of any of
them may treat the Person in whose name this Certificate is registered as of the
related Record Date as the owner hereof for the purpose of receiving
distributions pursuant to the Agreement and may treat the person in whose name
this Certificate is registered as of the relevant date of determination as owner
of this Certificate for all other purposes whatsoever, and none of the
Depositor, the Master Servicer, the Special Servicer, the Certificate
Administrator, the Trustee, the Certificate Registrar or any such agent shall be
affected by notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier to occur of (i) the final
payment (or any advance with respect thereto) on or other liquidation of the
last Trust Mortgage Loan or REO Property remaining in the Trust Fund, (ii) the
purchase by the Master Servicer, the Special Servicer or the Plurality
Subordinate Certificateholder at a price determined as provided in the Agreement
of all Trust Mortgage Loans and any REO Properties (or, if specified in the
Agreement with respect to any REO Property, the Trust's interests therein)
remaining in the Trust and (iii) the exchange by the Sole Certificate Owner of
certain remaining outstanding Classes of Certificates (as described below) for
all the Mortgage Loans and REO Properties (or, if specified in the Agreement
with respect to any REO Property, the Trust's interests therein) in the Trust
Fund. The Agreement permits, but does not require, the Master Servicer, the
Special Servicer or the Plurality Subordinate Certificateholder to purchase from
the Trust all Mortgage Loans and any REO Properties (or, if specified in the
Agreement with respect to any REO Property, the Trust's interests therein)
remaining therein. The exercise of such right will effect early retirement of
the Certificates; however, such right to purchase is subject to the aggregate
Stated Principal Balance of the Mortgage Pool at the time of purchase being less
than approximately 1.0% of the Initial Pool Balance. In addition, following the
date on which the total principal balance of the X-0, X-0, X-0, X-0XX, X-0X,
X-XX, X-0, A-4FC, Class AM, Class AJ, Class B, Class C and Class D Certificates
is reduced to zero, any single Holder of each outstanding Class of Certificates
(other than the Class Z, Class R-I and Class R-II Certificates) may, subject to
such other conditions as may be set forth in the Agreement, exchange those
Certificates for all Mortgage Loans and REO Properties (or, if specified in the
Agreement with respect to any REO Property, the Trust's interests therein)
remaining in the Trust Fund at the time of the exchange.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Certificate
Administrator and the Trustee thereunder and the rights of the
Certificateholders thereunder, at any time by the Master Servicer, the Special
Servicer, the Trustee and the Certificate Administrator with the consent of the
Holders of Certificates entitled to at least 66-2/3% of the Voting Rights. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of each of REMIC I and
REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:_________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [E] [F] [G] [H] Certificates referred to in
the within-mentioned Agreement.
Dated: December 28, 2005
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:_________________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto____________________________________________________
____________________________________________________________________
____________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to
the above named assignee and delivery of such Commercial Mortgage
Pass-Through Certificate to the following address:__________________
____________________________________________________________________
____________________________________________________________________
Dated:
--------------------------------------------
Signature by or on behalf of Assignor
--------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to_______________________
for the account of_________________________________________________.
Distributions made by check (such check to be made payable to_______
______________________) and all applicable statements and notices
should be mailed to_________________________________________________
____________________________________________________________________
___________________________________________________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its
agent.
EXHIBIT A-6
FORM OF CLASS J, K, L, M, N, P AND Q CERTIFICATES
XXXXXXX XXXXX MORTGAGE TRUST 2005-LC1
CLASS [J] [K] [L] [M] [N] [P] [Q] COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATE,
SERIES 2005-LC1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of commercial, multifamily and manufactured housing community
mortgage loans (the "Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Pass-Through Rate: Variable Initial Certificate Principal Balance of
this Certificate as of the Closing Date:
$[_______________]
Date of Pooling and Servicing Class Principal Balance of all the Class
Agreement: December 1, 2005 [J] [K] [L] [M] [N] [P] [Q] Certificates
as of the Closing Date:
$[________________]
Closing Date: December 28, 0000 Xxxxxxxxx unpaid principal balance of
the Mortgage Pool as of the Cut-off
First Distribution Date: January 12, Date, after deducting payments of
2006 principal due on or before such date
(the "Initial Pool Balance"):
$2,056,750,308
Master Servicer: GMAC Commercial Trustee: Xxxxx Fargo Bank, N.A.
Mortgage Corporation
Special Servicer: LNR Partners, Inc. Certificate Administrator: LaSalle Bank
National Association
Certificate No. [J] [K] [L] [M] [N] CUSIP No.: [ ]
[P] [Q]-[1]
[FOR BOOK ENTRY CERTIFICATES:] UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST CORPORATION, A NEW YORK
CORPORATION ("DTC"), TO THE DEPOSITOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., GMAC COMMERCIAL MORTGAGE CORPORATION, LNR
PARTNERS, INC., XXXXX FARGO BANK, N.A., LASALLE BANK NATIONAL ASSOCIATION OR ANY
OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS
ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY
OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
[FOR REG S:] [PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE LATER OF (A) THE
COMMENCEMENT OF THE OFFERING TO PERSONS OTHER THAN DISTRIBUTORS IN RELIANCE ON
REGULATION S UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND (B) THE DATE OF
CLOSING OF THE OFFERING, THIS CERTIFICATE 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.]
This certifies that [CEDE & CO.][_________] is the registered owner
of the Percentage Interest evidenced by this Certificate (obtained by dividing
the principal balance of this Certificate (its "Certificate Principal Balance")
as of the Closing Date by the aggregate principal balance of all the
Certificates of the same Class as this Certificate (their "Class Principal
Balance") as of the Closing Date) in that certain beneficial ownership interest
in the Trust evidenced by all the Certificates of the same Class as this
Certificate. The Trust was created and the Certificates were issued pursuant to
a Pooling and Servicing Agreement, dated as specified above (the "Agreement"),
between Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor (the "Depositor",
which term includes any successor entity under the Agreement), GMAC Commercial
Mortgage Corporation, as master servicer (the "Master Servicer", which term
includes any successor entity under the Agreement), LNR Partners, Inc., as
special servicer (the "Special Servicer", which term includes any successor
entity under the Agreement), Xxxxx Fargo Bank, N.A., as trustee (the "Trustee",
which term includes any successor entity under the Agreement), and LaSalle Bank
National Association, as certificate administrator (the "Certificate
Administrator", which term includes any successor entity under the Agreement), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound. In the event of any conflict
between any provision of this Certificate and any provision of the Agreement,
such provision of this Certificate shall be superseded to the extent of such
inconsistency.
Pursuant to the terms of the Agreement, distributions will be made
on the 12th day of any given month, or if the 12th day is not a Business Day, on
the next succeeding Business Day (each, a "Distribution Date"). Distributions
will be made commencing on the first Distribution Date specified above, to the
Person in whose name this Certificate is registered at the close of business on
the last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed pursuant to the Agreement on the applicable Distribution Date in
respect of the Class of Certificates to which this Certificate belongs; provided
that the initial Record Date will be the Closing Date. All distributions made
under the Agreement in respect of this Certificate will be made by the
Certificate Administrator by wire transfer in immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Certificate Administrator with written wiring instructions no less than five
(5) Business Days prior to (or, in the case of the first such distribution, no
later than) the Record Date for such distribution (which wiring instructions may
be in the form of a standing order applicable to all subsequent distributions as
well), or otherwise by check mailed to the address of such Certificateholder
appearing in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate (determined without regard to any
possible future reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate) will be made after due notice
by the Certificate Administrator of the pendency of such distribution and only
upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar appointed as provided in the Agreement or such other
location as may be specified in such notice. Also notwithstanding the foregoing,
any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appeared in the Certificate Register or to any
such other address of which the Certificate Administrator is subsequently
notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account, the Distribution Account
and, if established, the Pool REO Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No direct or indirect transfer, sale, pledge, hypothecation or other
disposition (each, a "Transfer") of this Certificate or any interest herein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If this Certificate constitutes a Definitive Certificate and a
Transfer hereof is to be made without registration under the Securities Act
(other than in connection with the initial issuance of the Certificates or a
Transfer of this Certificate by the Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated or any of their respective Affiliates or, if this Certificate
is a Global Certificate, a Transfer of this Certificate to a successor
Depository or to the applicable Certificate Owner in accordance with Section
5.03 of the Agreement), then the Certificate Registrar shall refuse to register
such Transfer unless it receives (and, upon receipt, may conclusively rely upon)
either: (i) a certificate from the Certificateholder desiring to effect such
Transfer substantially in the form attached as Exhibit E-1 to the Agreement and
a certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit E-2A to the Agreement or as Exhibit E-2B
to the Agreement; or (ii) an Opinion of Counsel satisfactory to the Certificate
Administrator to the effect that such Transferee is an Institutional Accredited
Investor or a Qualified Institutional Buyer and such Transfer may be made
without registration under the Securities Act (which Opinion of Counsel shall
not be an expense of the Trust Fund or of the Depositor, the Master Servicer,
the Special Servicer, the Certificate Administrator, the Trustee or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such Transfer from the
Certificateholder desiring to effect such Transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based. If any Transferee of this Certificate does not, in connection with the
subject Transfer, deliver to the Certificate Registrar one of the certifications
described in clause (i) of the preceding sentence or the Opinion of Counsel
described in clause (ii) of the preceding sentence, then such Transferee shall
be deemed to have represented and warranted that all the certifications set
forth in either Exhibit E-2A or Exhibit E-2B attached to the Agreement are, with
respect to the subject Transfer, true and correct.
[FOR RULE 144A:] [If this Certificate constitutes a Rule 144A Global
Certificate and a Transfer of any interest herein is to be made without
registration under the Securities Act (other than in connection with the initial
issuance of the Certificates or a Transfer of any interest herein by the
Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated or any of their
respective Affiliates), then the Certificate Owner desiring to effect such
Transfer shall be required to obtain either: (i) a certificate from such
Certificate Owner's prospective Transferee substantially in the form attached as
Exhibit E-2C to the Agreement, or (ii) an Opinion of Counsel to the effect that
such Transferee is a Qualified Institutional Buyer and such Transfer may be made
without registration under the Securities Act. Except as discussed below, an
interest in a Rule 144A Global Certificate for any Class of Book-Entry
Non-Registered Certificates may not be transferred to any Person who takes
delivery other than in the form of an interest in such Rule 144A Global
Certificate. If this Certificate constitutes a Rule 144A Global Certificate and
any Transferee of an interest herein does not, in connection with the subject
Transfer, deliver to the Transferor the Opinion of Counsel or the certification
described in the second preceding sentence, then such Transferee shall be deemed
to have represented and warranted that all the certifications set forth in
Exhibit E-2C attached to the Agreement are, with respect to the subject
Transfer, true and correct.
Notwithstanding the preceding paragraph, any interest in a Rule 144A
Global Certificate with respect to any Class of Book-Entry Non-Registered
Certificates may be transferred by any Certificate Owner holding such interest
to any Institutional Accredited Investor (other than a Qualified Institutional
Buyer) that takes delivery in the form of a Definitive Certificate of the same
Class as such Rule 144A Global Certificate upon delivery to the Certificate
Registrar and the Certificate Administrator of (i) such certifications and/or
opinions as are contemplated by the third preceding paragraph, (ii) a
certification from such Certificate Owner to the effect that it is the lawful
owner of the beneficial interest being transferred and (iii) such written orders
and instructions as are required under the applicable procedures of the
Depository to direct the Certificate Administrator to debit the account of a
Depository Participant by the denomination of the transferred interests in such
Rule 144A Global Certificate. Upon delivery to the Certificate Registrar of such
certifications and/or opinions and such orders and instructions, the Certificate
Administrator, subject to and in accordance with the applicable procedures of
the Depository, shall reduce the denomination of the subject Rule 144A Global
Certificate by the denomination of the transferred interests in such Rule 144A
Global Certificate, and shall cause a Definitive Certificate of the same Class
as such Rule 144A Global Certificate, and in a denomination equal to the
reduction in the denomination of such Rule 144A Global Certificate, to be
executed, authenticated and delivered in accordance with the Agreement to the
applicable Transferee.]
[FOR REG S:] [If this Certificate constitutes a Regulation S Global
Certificate and a Transfer of any interest herein is to be made without
registration under the Securities Act (other than in connection with the initial
issuance of the Certificates or a Transfer of any interest herein by the
Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, or any of their
respective Affiliates), then the Certificate Owner desiring to effect such
Transfer shall be required to obtain a certificate from such Certificate Owner's
prospective Transferee substantially in the form attached as Exhibit E-2D to the
Agreement to the effect that such Transferee is not a United States Person. If
this Certificate constitutes a Regulation S Global Certificate and any
Transferee of an interest herein does not, in connection with the subject
Transfer, deliver to the Transferor the certification described in the second
preceding sentence, then such Transferee shall be deemed to have represented and
warranted that all the certifications set forth in Exhibit E-2D attached to the
Agreement are, with respect to the subject Transfer, true and correct.
Notwithstanding the preceding paragraph, any interest in a
Regulation S Global Certificate for a Class of Book-Entry Non-Registered
Certificates may be transferred to any Qualified Institutional Buyer that takes
delivery in the form of a beneficial interest in the Rule 144A Global
Certificate for such Class of Certificates, provided that the Certificate Owner
desiring to effect such transfer (i) complies with the requirements for
Transfers of interests in such Rule 144A Global Certificate set forth in the
Section 5.02 of the Agreement and (ii) delivers or causes to be delivered to the
Certificate Registrar and the Certificate Administrator (A) a certificate from
such Certificate Owner confirming its ownership of the beneficial interests in
the subject Class of Book-Entry Non-Registered Certificates to be transferred,
(B) a copy of the certificate or Opinion of Counsel to be obtained by such
Certificate Owner from its prospective Transferee in accordance with Section
5.02(b) of the Agreement and (C) such written orders and instructions as are
required under the applicable procedures of the Depository, Clearstream and
Euroclear to direct the Certificate Administrator to debit the account of a
Depository Participant by a denomination of interests in such Regulation S
Global Certificate, and credit the account of a Depository Participant by a
denomination of interests in such Rule 144A Global Certificate, that is equal to
the denomination of beneficial interests in the subject Class of Book-Entry
Non-Registered Certificates to be transferred. Upon delivery to the Certificate
Registrar and the Certificate Administrator of such certification(s) and/or
Opinion of Counsel and such orders and instructions, the Certificate
Administrator, subject to and in accordance with the applicable procedures of
the Depository, shall reduce the denomination of the Regulation S Global
Certificate in respect of the subject Class of Book-Entry Non-Registered
Certificates, and increase the denomination of the Rule 144A Global Certificate
for such Class of Certificates, by the denomination of the beneficial interest
in such Class of Certificates specified in such orders and instructions.
Also notwithstanding the foregoing, any interest in a Global
Certificate with respect to any Class of Book-Entry Non-Registered Certificates
may be transferred by any Certificate Owner holding such interest to any
Institutional Accredited Investor (other than a Qualified Institutional Buyer)
that takes delivery in the form of a Definitive Certificate of the same Class as
such Global Certificate upon delivery to the Certificate Registrar and the
Certificate Administrator of (i) such certifications and/or opinions as are
contemplated by Section 5.02 of the Agreement and (ii) such written orders and
instructions as are required under the applicable procedures of the Depository
to direct the Certificate Administrator to debit the account of a Depository
Participant by the denomination of the transferred interests in such Global
Certificate. Upon delivery to the Certificate Registrar and the Certificate
Administrator of the certifications and/or opinions contemplated by Section 5.02
of the Agreement, the Certificate Administrator, subject to and in accordance
with the applicable procedures of the Depository, shall reduce the denomination
of the subject Global Certificate by the denomination of the transferred
interests in such Global Certificate, and shall cause a Definitive Certificate
of the same Class as such Global Certificate, and in a denomination equal to the
reduction in the denomination of such Global Certificate, to be executed,
authenticated and delivered in accordance with this Agreement to the applicable
Transferee.]
None of the Depositor, the Certificate Administrator, the Trustee or
the Certificate Registrar is obligated to register or qualify the Class of
Certificates to which this Certificate belongs, under the Securities Act or any
other securities law or to take any action not otherwise required under the
Agreement to permit the Transfer of this Certificate or any interest herein
without such registration or qualification. Any Certificateholder or Certificate
Owner desiring to effect a Transfer of this Certificate or any interest herein
shall, and does hereby agree to, indemnify the Depositor, Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, Countrywide Securities Corporation, the Trustee,
the Certificate Administrator, the Master Servicer, the Special Servicer, the
Certificate Registrar and their respective Affiliates against any liability that
may result if such Transfer is not exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws or is not made in accordance with such federal and state laws.
No Transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or the Code (each, a "Plan"), or (B) any Person who is directly
or indirectly purchasing this Certificate or such interest herein on behalf of,
as named fiduciary of, as trustee of, or with assets of a Plan, if the purchase
and holding of this Certificate or such interest herein by the prospective
Transferee would result in a violation of Section 406 or 407 of ERISA or Section
4975 of the Code or would result in the imposition of an excise tax under
Section 4975 of the Code. Except in connection with the initial issuance of the
Certificates or any Transfer of this Certificate or any interest herein by the
Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated or any of their
respective Affiliates or, if this Certificate constitutes a Global Certificate,
any Transfer of this Certificate to a successor Depository or to the applicable
Certificate Owner in accordance with Section 5.03 of the Agreement, the
Certificate Registrar shall refuse to register the Transfer of this Certificate
unless it has received from the prospective Transferee, and, if this Certificate
constitutes a Global Certificate, any Certificate Owner transferring an interest
herein shall be required to obtain from its prospective Transferee, one of the
following: (i) a certification to the effect that such prospective Transferee is
not a Plan and is not directly or indirectly purchasing this Certificate or such
interest herein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan; or (ii) a certification to the effect that the purchase and
holding of this Certificate or such interest herein by such prospective
Transferee is exempt from the prohibited transaction provisions of Sections 406
and 407 of ERISA and the excise taxes imposed on such prohibited transactions by
Section 4975 of the Code, by reason of Sections I and III of Prohibited
Transaction Class Exemption 95-60; or (iii) if this Certificate is rated in one
of the four highest generic rating categories by either Rating Agency, and this
Certificate or an interest herein is being acquired by or on behalf of a Plan in
reliance on Prohibited Transaction Exemption 90-29 or 2000-55, a certification
to the effect that such Plan (X) is an accredited investor as defined in Rule
501(a)(1) of Regulation D of the Securities Act, (Y) is not sponsored (within
the meaning of Section 3(16)(B) of ERISA) by the Trustee, the Certificate
Administrator, the Depositor, any Mortgage Loan Seller, the Master Servicer, the
Special Servicer, any Sub-Servicer, the Certificate Administrator, any
Exemption-Favored Party or any Mortgagor with respect to Mortgage Loans
constituting more than 5% of the aggregate unamortized principal balance of all
the Mortgage Loans determined as of the Closing Date, or by any Affiliate of
such Person, and (Z) agrees that it will obtain from each of its Transferees
that are Plans a written representation that such Transferee, if a Plan,
satisfies the requirements of the immediately preceding clauses (X) and (Y),
together with a written agreement that such Transferee will obtain from each of
its Transferees that are Plans a similar written representation regarding
satisfaction of the requirements of the immediately preceding clauses (X) and
(Y); or (iv) a certification of facts and an Opinion of Counsel which otherwise
establish to the reasonable satisfaction of the Certificate Administrator or
such Certificate Owner, as the case may be, that such Transfer will not result
in a violation of Section 406 or 407 of ERISA or Section 4975 of the Code or
result in the imposition of an excise tax under Section 4975 of the Code. If any
Transferee of this Certificate or any interest herein does not, in connection
with the subject Transfer, deliver to the Certificate Registrar (if this
Certificate constitutes a Definitive Certificate) or the Transferor (if this
Certificate constitutes a Global Certificate) a certification and/or Opinion of
Counsel as required by the preceding sentence, then such Transferee shall be
deemed to have represented and warranted that either: (i) such Transferee is not
a Plan and is not directly or indirectly purchasing this Certificate or any
interest herein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan; or (ii) the purchase and holding of this Certificate or such
interest herein by such Transferee is exempt from the prohibited transaction
provisions of Sections 406 and 407 of ERISA and the excise taxes imposed on such
prohibited transactions by Section 4975 of the Code.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Certificate Administrator or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
[FOR BOOK ENTRY CERTIFICATES:] Notwithstanding the foregoing, for so
long as this Certificate is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC, transfers of
interests in this Certificate shall be made through the book-entry facilities of
DTC.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Certificate Administrator (except that such Holder may provide any such
information obtained by it to any other Person that holds or is contemplating
the purchase of this Certificate or an interest herein, provided that such other
Person confirms in writing such ownership interest or prospective ownership
interest and agrees to keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the
Certificate Administrator, the Trustee, the Certificate Registrar and any agent
of any of them may treat the Person in whose name this Certificate is registered
as of the related Record Date as the owner hereof for the purpose of receiving
distributions pursuant to the Agreement and may treat the person in whose name
this Certificate is registered as of the relevant date of determination as owner
of this Certificate for all other purposes whatsoever, and none of the
Depositor, the Master Servicer, the Special Servicer, the Certificate
Administrator, the Trustee, the Certificate Registrar or any such agent shall be
affected by notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Certificate Administrator and required to be
distributed to them pursuant to the Agreement following the earlier to occur of
(i) the final payment (or any advance with respect thereto) on or other
liquidation of the last Trust Mortgage Loan or REO Property remaining in the
Trust Fund, (ii) the purchase by the Master Servicer, the Special Servicer or
the Plurality Subordinate Certificateholder at a price determined as provided in
the Agreement of all Trust Mortgage Loans and any REO Properties (or, if
specified in the Agreement with respect to any REO Property, the Trust's
interests therein) remaining in the Trust and (iii) the exchange by the Sole
Certificate Owner of certain remaining outstanding Classes of Certificates (as
described below) for all the Mortgage Loans and REO Properties (or, if specified
in the Agreement with respect to any REO Property, the Trust's interests
therein) in the Trust Fund. The Agreement permits, but does not require, the
Master Servicer, the Special Servicer or the Plurality Subordinate
Certificateholder to purchase from the Trust all Mortgage Loans and any REO
Properties (or, if specified in the Agreement with respect to any REO Property,
the Trust's interests therein) remaining therein. The exercise of such right
will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than approximately 1.0% of the Initial
Pool Balance. In addition, following the date on which the total principal
balance of the X-0, X-0, X-0, X-0XX, X-0X, X-XX, X-0, A-4FC, Class AM, Class AJ,
Class B, Class C and Class D Certificates is reduced to zero, any single Holder
of each outstanding Class of Certificates (other than the Class Z, Class R-I and
Class R-II Certificates) may, subject to such other conditions as may be set
forth in the Agreement, exchange those Certificates for all Mortgage Loans and
REO Properties (or, if specified in the Agreement with respect to any REO
Property, the Trust's interests therein) remaining in the Trust Fund at the time
of the exchange.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Certificate
Administrator and the Trustee thereunder and the rights of the
Certificateholders thereunder, at any time by the Master Servicer, the Special
Servicer, the Trustee and the Certificate Administrator with the consent of the
Holders of Certificates entitled to at least 66-2/3% of the Voting Rights. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of each of REMIC I and
REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:_________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [J] [K] [L] [M] [N] [P] [Q] Certificates
referred to in the within-mentioned Agreement.
Dated: December 28, 2005
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:_________________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto____________________________________________________
____________________________________________________________________
____________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to
the above named assignee and delivery of such Commercial Mortgage
Pass-Through Certificate to the following address:__________________
____________________________________________________________________
____________________________________________________________________
Dated:
--------------------------------------------
Signature by or on behalf of Assignor
--------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to_______________________
for the account of_________________________________________________.
Distributions made by check (such check to be made payable to_______
______________________) and all applicable statements and notices
should be mailed to_________________________________________________
____________________________________________________________________
___________________________________________________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its
agent.
EXHIBIT A-7
FORM OF CLASS R-I AND R-II CERTIFICATES
XXXXXXX XXXXX MORTGAGE TRUST 2005-LC1
CLASS [R-I] [R-II] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2005-LC1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of commercial, multifamily and manufactured housing community
mortgage loans (the "Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Date of Pooling and Servicing Percentage Interest evidenced by this
Agreement: December 1, 2005 Certificate in the related Class:
[_____]%
Closing Date: December 28, 0000 Xxxxxxxxx unpaid principal balance of the
Mortgage Pool as of the Cut-off Date,
First Distribution Date: January 12, after deducting payments of principal due
2006 on or before such date (the "Initial Pool
Balance"):
$1,546,255,943
Master Servicer: GMAC Commercial Trustee: Xxxxx Fargo Bank, N.A.
Mortgage Coporation
Special Servicer: LNR Partners, Inc. Certificate Administrator: LaSalle Bank
National Association
Certificate No. [R-I] [R-II]-[1] CUSIP No.: [ ]
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY TO A
"QUALIFIED INSTITUTIONAL BUYER" WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., GMAC COMMERCIAL MORTGAGE CORPORATION, LNR
PARTNERS, INC., XXXXX FARGO BANK, N.A., LASALLE BANK NATIONAL ASSOCIATION OR ANY
OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS
ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY
OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, THE TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL
TAX RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
This certifies that [ ] is the registered owner of the Percentage
Interest evidenced by this Certificate (as specified above) in that certain
beneficial ownership interest in the Trust evidenced by all the Certificates of
the same Class as this Certificate. The Trust was created and the Certificates
were issued pursuant to a Pooling and Servicing Agreement, dated as specified
above (the "Agreement"), between Xxxxxxx Xxxxx Mortgage Investors, Inc., as
depositor (the "Depositor", which term includes any successor entity under the
Agreement), GMAC Commercial Mortgage Corporation, as master servicer (the
"Master Servicer", which term includes any successor entity under the
Agreement), LNR Partners, Inc., as special servicer (the "Special Servicer",
which term includes any successor entity under the Agreement), Xxxxx Fargo Bank,
N.A., as trustee (the "Trustee", which term includes any successor entity under
the Agreement),and LaSalle Bank National Association, as certificate
administrator (the "Certificate Administrator", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound. In the event of any conflict between any provision of this
Certificate and any provision of the Agreement, such provision of this
Certificate shall be superseded to the extent of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made
on the 12th day of any given month, or if the 12th day is not a Business Day, on
the next succeeding Business Day (each, a "Distribution Date"). Distributions
will be made commencing on the first Distribution Date specified above, to the
Person in whose name this Certificate is registered at the close of business on
the last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed pursuant to the Agreement on the applicable Distribution Date in
respect of the Class of Certificates to which this Certificate belongs; provided
that the initial Record Date will be the Closing Date. All distributions made
under the Agreement in respect of this Certificate will be made by the
Certificate Administrator by wire transfer in immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Certificate Administrator with written wiring instructions no less than five
(5) Business Days prior to (or, in the case of the first such distribution, no
later than) the Record Date for such distribution (which wiring instructions may
be in the form of a standing order applicable to all subsequent distributions as
well), or otherwise by check mailed to the address of such Certificateholder
appearing in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate will be made after due notice by the
Certificate Administrator of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the offices of the Certificate
Registrar appointed as provided in the Agreement or such other location as may
be specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account, the Distribution Account
and, if established, the Pool REO Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No direct or indirect transfer, sale, pledge, hypothecation or other
disposition (each, a "Transfer") of this Certificate or any interest herein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If a Transfer of this Certificate is to be made without registration
under the Securities Act (other than in connection with the initial issuance of
the Certificates or a Transfer of this Certificate by the Depositor, Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated or any of their respective
Affiliates), then the Certificate Registrar shall refuse to register such
Transfer unless it receives (and, upon receipt, may conclusively rely upon)
either: (i) a certificate from the Certificateholder desiring to effect such
Transfer substantially in the form attached as Exhibit E-1 to the Agreement and
a certificate from such Certificateholder's prospective Transferee substantially
in the form attached as Exhibit E-2A to the Agreement; or (ii) an Opinion of
Counsel satisfactory to the Certificate Administrator to the effect that such
Transferee is a Qualified Institutional Buyer and such Transfer may be made
without registration under the Securities Act (which Opinion of Counsel shall
not be an expense of the Trust Fund or of the Depositor, the Master Servicer,
the Special Servicer, the Certificate Administrator, the Trustee or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such Transfer from the
Certificateholder desiring to effect such Transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based. If any Transferee of this Certificate does not, in connection with the
subject Transfer, deliver to the Certificate Registrar one of the certifications
described in clause (i) of the preceding sentence or the Opinion of Counsel
described in clause (ii) of the preceding sentence, then such Transferee shall
be deemed to have represented and warranted that all the certifications set
forth in Exhibit E-2A attached to the Agreement are, with respect to the subject
Transfer, true and correct.
None of the Depositor, the Certificate Administrator, the Trustee or
the Certificate Registrar is obligated to register or qualify the Class of
Certificates to which this Certificate belongs, under the Securities Act or any
other securities law or to take any action not otherwise required under the
Agreement to permit the Transfer of this Certificate or any interest herein
without such registration or qualification. Any Certificateholder desiring to
effect a Transfer of this Certificate or any interest herein shall, and does
hereby agree to, indemnify the Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, Countrywide Securities Corporation, the Trustee, the Certificate
Administrator, the Master Servicer, the Special Servicer, the Certificate
Registrar and their respective Affiliates against any liability that may result
if such Transfer is not exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws or
is not made in accordance with such federal and state laws.
No Transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or the Code (each, a "Plan"), or (B) any Person who is directly
or indirectly purchasing this Certificate or such interest herein on behalf of,
as named fiduciary of, as trustee of, or with assets of a Plan. Except in
connection with the initial issuance of the Certificates or any Transfer of this
Certificate by the Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
or any of their respective Affiliates, the Certificate Registrar shall refuse to
register the Transfer of this Certificate unless it has received from the
prospective Transferee a certification to the effect that such prospective
Transferee is not a Plan and is not directly or indirectly purchasing this
Certificate on behalf of, as named fiduciary of, as trustee of, or with assets
of a Plan. If any Transferee of this Certificate or any interest herein does
not, in connection with the subject Transfer, deliver to the Certificate
Registrar a certification as required by the preceding sentence, then such
Transferee shall be deemed to have represented and warranted that such
Transferee is not a Plan and is not directly or indirectly purchasing this
Certificate or such interest herein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Certificate Administrator under clause (ii)(A) of
such Section 5.02(d) to deliver payments to a Person other than such Person and
to have irrevocably authorized the Certificate Administrator under clause
(ii)(B) of such Section 5.02(d) to negotiate the terms of any mandatory
disposition and to execute all instruments of transfer and to do all other
things necessary in connection with any such disposition. Each Person holding or
acquiring any Ownership Interest in this Certificate must be a Permitted
Transferee and shall promptly notify the Certificate Administrator and the REMIC
Administrator of any change or impending change in its status as a Permitted
Transferee. In connection with any proposed Transfer of any Ownership Interest
in this Certificate, the Certificate Registrar shall require delivery to it, and
shall not register the transfer of this Certificate until its receipt of, an
affidavit and agreement substantially in the form attached as Exhibit G-1 to the
Agreement (a "Transfer Affidavit and Agreement") from the proposed Transferee,
representing and warranting, among other things, that such Transferee is a
Permitted Transferee, that it is not acquiring its Ownership Interest in this
Certificate as a nominee, trustee or agent for any Person that is not a
Permitted Transferee, that for so long as it retains its Ownership Interest in
this Certificate, it will endeavor to remain a Permitted Transferee, and that it
has reviewed the provisions of Section 5.02(d) of the Agreement and agrees to be
bound by them. Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee, if the Certificate Registrar has actual
knowledge that the proposed Transferee is not a Permitted Transferee, the
Certificate Registrar shall not register the Transfer of an Ownership Interest
in this Certificate to such proposed Transferee. In addition, the Certificate
Registrar shall not register the transfer of an Ownership Interest in this
Certificate to any entity classified as a partnership under the Code unless at
the time of transfer, all of its beneficial owners are United States Tax
Persons.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any other Person to whom such Person attempts to Transfer its Ownership Interest
herein and (y) not to Transfer its Ownership Interest herein unless it provides
to the Certificate Registrar a certificate substantially in the form attached as
Exhibit G-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest herein, agrees to give the Certificate Administrator and
the REMIC Administrator written notice that it is a "pass-through interest
holder" within the meaning of temporary Treasury regulations section
1.67-3T(a)(2)(i)(A) immediately upon acquiring such Ownership Interest, if it
is, or is holding such Ownership Interest on behalf of, a "pass-through interest
holder".
The provisions of Section 5.02(d) of the Agreement may be modified,
added to or eliminated, provided that there shall have been delivered to the
Certificate Administrator and the REMIC Administrator the following: (a) written
notification from each Rating Agency to the effect that the modification of,
addition to or elimination of such provisions will not cause such Rating Agency
to withdraw, qualify or downgrade its then-current rating of any Class of
Certificates; and (b) an opinion of counsel, in form and substance satisfactory
to the Certificate Administrator and the REMIC Administrator, to the effect that
such modification of, addition to or elimination of such provisions will not (i)
cause either REMIC I or REMIC II to (A) cease to qualify as a REMIC or (B) be
subject to an entity-level tax caused by the Transfer of a Residual Certificate
to a Person which is not a Permitted Transferee, or (ii) cause a Person other
than the prospective Transferee to be subject to a REMIC-related tax caused by
the Transfer of a Residual Certificate to a Person that is not a Permitted
Transferee.
A "Permitted Transferee" is any Transferee that is not (i) a
Disqualified Organization, (ii) any Person as to whom the transfer of this
Certificate may cause either REMIC I or REMIC II to fail to qualify as a REMIC,
(iii) a Disqualified Non-United States Tax Person, (iv) a Disqualified
Partnership or (v) a foreign permanent establishment or fixed base (within the
meaning of any applicable income tax treaty between the United States and any
foreign jurisdiction) of a United States Tax Person.
A "Disqualified Organization" is (i) the United States, any State or
political subdivision thereof, a foreign government, an international
organization, or any agency or instrumentality of any of the foregoing, (ii) any
organization (other than certain farmers' cooperatives described in Section 521
of the Code) that is exempt from the tax imposed by Chapter 1 of the Code
(including the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iii) rural electric and telephone cooperatives described in
Section 1381 of the Code and (iv) any other Person so designated by the
Certificate Administrator or the REMIC Administrator based upon an opinion of
counsel that the holding of an Ownership Interest in a Residual Certificate by
such Person may cause the Trust or any Person having an Ownership Interest in
any Class of Certificates (other than such Person) to incur a liability for any
federal tax imposed under the Code that would not otherwise be imposed but for
the Transfer of an Ownership Interest in a Residual Certificate to such Person.
The terms "United States", "State" and "international organization" shall have
the meanings set forth in Section 7701 of the Code or successor provisions.
A "Disqualified Non-United States Tax Person" is, with respect to
any Residual Certificate, any Non-United States Tax Person or agent thereof
other than: (1) a Non-United States Tax Person that (a) holds such Residual
Certificate and, for purposes of Treasury regulations section 1.860G-3(a)(3), is
subject to tax under Section 882 of the Code, (b) certifies that it understands
that, for purposes of Treasury regulations section 1.860E-1(c)(4)(ii), as a
holder of such Residual Certificate for United States federal income tax
purposes, it may incur tax liabilities in excess of any cash flows generated by
such Residual Certificate and intends to pay taxes associated with holding such
Residual Certificate, and (c) has furnished the Transferor and the Certificate
Administrator with an effective IRS Form W-8ECI or successor form and has agreed
to update such form as required under the applicable Treasury regulations; or
(2) a Non-United States Tax Person that has delivered to the Transferor, the
Certificate Administrator and the Certificate Registrar an opinion of nationally
recognized tax counsel to the effect that (x) the Transfer of such Residual
Certificate to it is in accordance with the requirements of the Code and the
regulations promulgated thereunder and (y) such Transfer of such Residual
Certificate will not be disregarded for United States federal income tax
purposes.
A "Disqualified Partnership" is any domestic entity classified as a
partnership under the Code, if any of its beneficial owners are Disqualified
Non-United States Tax Persons.
A "Non-United States Tax Person" is any Person other than a United
States Tax Person. A "United States Tax Person" is a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in, or under the laws of, the United States or any political subdivision
thereof, or an estate whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States, or a trust if a court within the United States is able to
exercise supervision over the administration of the trust and one or more United
States persons have the authority to control all substantial decisions of the
trust (or to the extent provided in the Treasury regulations, if the trust was
in existence on August 20, 1996 and elected to be treated as a United States
person), all within the meaning of Section 7701(a)(30) of the Code.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Certificate Administrator or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Certificate Administrator (except that such Holder may provide any such
information obtained by it to any other Person that holds or is contemplating
the purchase of this Certificate or an interest herein, provided that such other
Person confirms in writing such ownership interest or prospective ownership
interest and agrees to keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the
Certificate Administrator, the Trustee, the Certificate Registrar and any agent
of any of them may treat the Person in whose name this Certificate is registered
as of the related Record Date as the owner hereof for the purpose of receiving
distributions pursuant to the Agreement and may treat the person in whose name
this Certificate is registered as of the relevant date of determination as owner
of this Certificate for all other purposes whatsoever, and none of the
Depositor, the Master Servicer, the Special Servicer, the Certificate
Administrator, the Trustee, the Certificate Registrar or any such agent shall be
affected by notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Certificate Administrator and required to be
distributed to them pursuant to the Agreement following the earlier to occur of
(i) the final payment (or any advance with respect thereto) on or other
liquidation of the last Trust Mortgage Loan or REO Property remaining in the
Trust Fund, (ii) the purchase by the Master Servicer, the Special Servicer or
the Plurality Subordinate Certificateholder at a price determined as provided in
the Agreement of all Trust Mortgage Loans and any REO Properties (or, if
specified in the Agreement with respect to any REO Property, the Trust's
interests therein) remaining in the Trust and (iii) the exchange by the Sole
Certificate Owner of certain remaining outstanding Classes of Certificates (as
described below) for all the Mortgage Loans and REO Properties (or, if specified
in the Agreement with respect to any REO Property, the Trust's interests
therein) in the Trust Fund. The Agreement permits, but does not require, the
Master Servicer, the Special Servicer or the Plurality Subordinate
Certificateholder to purchase from the Trust all Mortgage Loans and any REO
Properties (or, if specified in the Agreement with respect to any REO Property,
the Trust's interests therein) remaining therein. The exercise of such right
will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than approximately 1.0% of the Initial
Pool Balance. In addition, following the date on which the total principal
balance of the X-0, X-0, X-0, X-0XX, X-0X, X-XX, X-0, A-4FC, Class AM, Class AJ,
Class B, Class C and Class D Certificates is reduced to zero, any single Holder
of each outstanding Class of Certificates (other than the Class Z, Class R-I and
Class R-II Certificates) may, subject to such other conditions as may be set
forth in the Agreement, exchange those Certificates for all Mortgage Loans and
REO Properties (or, if specified in the Agreement with respect to any REO
Property, the Trust's interests therein) remaining in the Trust Fund at the time
of the exchange.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Certificate
Administrator and the Trustee thereunder and the rights of the
Certificateholders thereunder, at any time by the Master Servicer, the Special
Servicer, the Trustee and the Certificate Administrator with the consent of the
Holders of Certificates entitled to at least 66-2/3% of the Voting Rights. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of each of REMIC I and
REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:_________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [R-I] [R-II] Certificates referred to in
the within-mentioned Agreement.
Dated: December 28, 2005
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:_________________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto____________________________________________________
____________________________________________________________________
____________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to
the above named assignee and delivery of such Commercial Mortgage
Pass-Through Certificate to the following address:__________________
____________________________________________________________________
____________________________________________________________________
Dated:
--------------------------------------------
Signature by or on behalf of Assignor
--------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to_______________________
for the account of_________________________________________________.
Distributions made by check (such check to be made payable to_______
______________________) and all applicable statements and notices
should be mailed to_________________________________________________
____________________________________________________________________
___________________________________________________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its
agent.
EXHIBIT A-8
FORM OF CLASS Z CERTIFICATES
XXXXXXX XXXXX MORTGAGE TRUST 2005-LC1
CLASS Z COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2005-LC1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of commercial, multifamily and manufactured housing community
mortgage loans (the "Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Date of Pooling and Servicing Percentage Interest evidenced by this
Agreement: December 1, 2005 Certificate in Class Z: [___]%
Closing Date: December 28, 0000 Xxxxxxxxx unpaid principal balance of the
Mortgage Pool as of the Cut-off Date,
First Distribution Date: January 12, after deducting payments of principal due
2006 on or before such date (the "Initial Pool
Balance"): $1,546,255,943
Master Servicer: GMAC Commercial Trustee: Xxxxx Fargo Bank, N.A.
Mortgage Corporation
Special Servicer: LNR Partners, Inc. Certificate Administrator: LaSalle Bank
National Association
Certificate No. Z-[1]
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY TO A
"QUALIFIED INSTITUTIONAL BUYER" WITHIN THE MEANING OF RULE 144A UNDER SECURITIES
ACT IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION
AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., GMAC COMMERCIAL MORTGAGE CORPORATION, LNR
PARTNERS, INC., XXXXX FARGO BANK, N.A., LASALLE BANK NATIONAL ASSOCIATION OR ANY
OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS
ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY
OTHER PERSON.
THIS CERTIFICATE IS ENTITLED ONLY TO CERTAIN ADDITIONAL INTEREST (IF ANY)
RECEIVED IN RESPECT OF THE ARD LOANS SUBJECT TO THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
This certifies that [ ] is the registered owner of the Percentage
Interest evidenced by this Certificate (as specified above) in that certain
beneficial ownership interest in the Trust evidenced by all the Class Z
Certificates. The Trust was created and the Certificates were issued pursuant to
a Pooling and Servicing Agreement, dated as specified above (the "Agreement"),
between Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor (the "Depositor",
which term includes any successor entity under the Agreement), GMAC Commercial
Mortgage Corporation, as master servicer (the "Master Servicer", which term
includes any successor entity under the Agreement), LNR Partners, Inc., as
special servicer (the "Special Servicer", which term includes any successor
entity under the Agreement), Xxxxx Fargo Bank, N.A., as trustee (the "Trustee",
which term includes any successor entity under the Agreement), and LaSalle Bank
National Association, as certificate administrator (the "Certificate
Administrator", which term includes any successor entity under the Agreement), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound. In the event of any conflict
between any provision of this Certificate and any provision of the Agreement,
such provision of this Certificate shall be superseded to the extent of such
inconsistency.
Pursuant to the terms of the Agreement, distributions will be made
on the 12th day of any given month, or if the 12th day is not a Business Day, on
the next succeeding Business Day (each, a "Distribution Date"). Distributions
will be made commencing on the first Distribution Date specified above, to the
Person in whose name this Certificate is registered at the close of business on
the last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed pursuant to the Agreement on the applicable Distribution Date in
respect of the Class of Certificates to which this Certificate belongs; provided
that the initial Record Date will be the Closing Date. All distributions made
under the Agreement in respect of this Certificate will be made by the
Certificate Administrator by wire transfer in immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Certificate Administrator with written wiring instructions no less than five
(5) Business Days prior to (or, in the case of the first such distribution, no
later than) the Record Date for such distribution (which wiring instructions may
be in the form of a standing order applicable to all subsequent distributions as
well), or otherwise by check mailed to the address of such Certificateholder
appearing in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate will be made after due notice by the
Certificate Administrator of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the offices of the Certificate
Registrar appointed as provided in the Agreement or such other location as may
be specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account, the Distribution Account
and, if established, the Pool REO Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No direct or indirect transfer, sale, pledge, hypothecation or other
disposition (each, a "Transfer") of this Certificate or any interest herein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If a Transfer of this Certificate is to be made without registration
under the Securities Act (other than in connection with the initial issuance of
the Certificates or a Transfer of this Certificate by the Depositor, Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated or any of their respective
Affiliates), then the Certificate Registrar shall refuse to register such
Transfer unless it receives (and, upon receipt, may conclusively rely upon)
either: (i) a certificate from the Certificateholder desiring to effect such
Transfer substantially in the form attached as Exhibit E-1 to the Agreement and
a certificate from such Certificateholder's prospective Transferee substantially
in the form attached as Exhibit E-2A to the Agreement; or (ii) an Opinion of
Counsel satisfactory to the Certificate Administrator to the effect that such
Transferee is a Qualified Institutional Buyer and such Transfer may be made
without registration under the Securities Act (which Opinion of Counsel shall
not be an expense of the Trust Fund or of the Depositor, the Master Servicer,
the Special Servicer, the Certificate Administrator, the Trustee or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such Transfer from the
Certificateholder desiring to effect such Transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based. If any Transferee of this Certificate does not, in connection with the
subject Transfer, deliver to the Certificate Registrar one of the certifications
described in clause (i) of the preceding sentence or the Opinion of Counsel
described in clause (ii) of the preceding sentence, then such Transferee shall
be deemed to have represented and warranted that all the certifications set
forth in Exhibit E-2A attached to the Agreement are, with respect to the subject
Transfer, true and correct.
None of the Depositor, the Certificate Administrator, the Trustee or
the Certificate Registrar is obligated to register or qualify the Class of
Certificates to which this Certificate belongs, under the Securities Act or any
other securities law or to take any action not otherwise required under the
Agreement to permit the Transfer of this Certificate or any interest herein
without such registration or qualification. Any Certificateholder desiring to
effect a Transfer of this Certificate or any interest herein shall, and does
hereby agree to, indemnify the Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, Countrywide Securities Corporation, the Trustee, the Certificate
Administrator, the Master Servicer, the Special Servicer, the Certificate
Registrar and their respective Affiliates against any liability that may result
if such Transfer is not exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws or
is not made in accordance with such federal and state laws.
No Transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or the Code (each, a "Plan"), or (B) any Person who is directly
or indirectly purchasing this Certificate or such interest herein on behalf of,
as named fiduciary of, as trustee of, or with assets of a Plan, if the purchase
and holding of this Certificate or such interest herein by the prospective
Transferee would result in a violation of Section 406 or 407 of ERISA or Section
4975 of the Code or would result in the imposition of an excise tax under
Section 4975 of the Code. Except in connection with the initial issuance of the
Certificates or any Transfer of this Certificate by the Depositor, Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated or any of their respective
Affiliates, the Certificate Registrar shall refuse to register the Transfer of
this Certificate unless it has received from the prospective Transferee, one of
the following: (i) a certification to the effect that such prospective
Transferee is not a Plan and is not directly or indirectly purchasing this
Certificate or such interest herein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan; or (ii) a certification of facts and an
Opinion of Counsel which otherwise establish to the reasonable satisfaction of
the Certificate Administrator that such Transfer will not result in a violation
of Section 406 or 407 of ERISA or Section 4975 of the Code or result in the
imposition of an excise tax under Section 4975 of the Code. If any Transferee of
this Certificate or any interest herein does not, in connection with the subject
Transfer, deliver to the Certificate Registrar a certification and/or Opinion of
Counsel as required by the preceding sentence, then such Transferee shall be
deemed to have represented and warranted that either: (i) such Transferee is not
a Plan and is not directly or indirectly purchasing this Certificate or such
interest herein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan; or (ii) the purchase and holding of this Certificate or such
interest herein by such Transferee is exempt from the prohibited transaction
provisions of Sections 406 and 407 of ERISA and the excise taxes imposed on such
prohibited transactions by Section 4975 of the Code.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Certificate Administrator or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Certificate Administrator (except that such Holder may provide any such
information obtained by it to any other Person that holds or is contemplating
the purchase of this Certificate or an interest herein, provided that such other
Person confirms in writing such ownership interest or prospective ownership
interest and agrees to keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the
Certificate Administrator, the Trustee, the Certificate Registrar and any agent
of any of them may treat the Person in whose name this Certificate is registered
as of the related Record Date as the owner hereof for the purpose of receiving
distributions pursuant to the Agreement and may treat the person in whose name
this Certificate is registered as of the relevant date of determination as owner
of this Certificate for all other purposes whatsoever, and none of the
Depositor, the Master Servicer, the Special Servicer, the Certificate
Administrator, the Trustee, the Certificate Registrar or any such agent shall be
affected by notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Certificate Administrator and required to be
distributed to them pursuant to the Agreement following the earlier to occur of
(i) the final payment (or any advance with respect thereto) on or other
liquidation of the last Trust Mortgage Loan or REO Property remaining in the
Trust Fund, (ii) the purchase by the Master Servicer, the Special Servicer or
the Plurality Subordinate Certificateholder at a price determined as provided in
the Agreement of all Trust Mortgage Loans and any REO Properties (or, if
specified in the Agreement with respect to any REO Property, the Trust's
interests therein) remaining in the Trust and (iii) the exchange by the Sole
Certificate Owner of certain remaining outstanding Classes of Certificates (as
described below) for all the Mortgage Loans and REO Properties (or, if specified
in the Agreement with respect to any REO Property, the Trust's interests
therein) in the Trust Fund. The Agreement permits, but does not require, the
Master Servicer, the Special Servicer or the Plurality Subordinate
Certificateholder to purchase from the Trust all Mortgage Loans and any REO
Properties (or, if specified in the Agreement with respect to any REO Property,
the Trust's interests therein) remaining therein. The exercise of such right
will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than approximately 1.0% of the Initial
Pool Balance. In addition, following the date on which the total principal
balance of the X-0, X-0, X-0, X-0XX, X-0X, X-XX, X-0, A-4FC, Class AM, Class AJ,
Class B, Class C and Class D Certificates is reduced to zero, any single Holder
of each outstanding Class of Certificates (other than the Class Z, Class R-I and
Class R-II Certificates) may, subject to such other conditions as may be set
forth in the Agreement, exchange those Certificates for all Mortgage Loans and
REO Properties (or, if specified in the Agreement with respect to any REO
Property, the Trust's interests therein) remaining in the Trust Fund at the time
of the exchange.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Certificate
Administrator and the Trustee thereunder and the rights of the
Certificateholders thereunder, at any time by the Master Servicer, the Special
Servicer, the Trustee and the Certificate Administrator with the consent of the
Holders of Certificates entitled to at least 66-2/3% of the Voting Rights. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of each of REMIC I and
REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:_________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class Z Certificates referred to in the
within-mentioned Agreement.
Dated: December 28, 2005
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:_________________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto____________________________________________________
____________________________________________________________________
____________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to
the above named assignee and delivery of such Commercial Mortgage
Pass-Through Certificate to the following address:__________________
____________________________________________________________________
____________________________________________________________________
Dated:
--------------------------------------------
Signature by or on behalf of Assignor
--------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to_______________________
for the account of_________________________________________________.
Distributions made by check (such check to be made payable to_______
______________________) and all applicable statements and notices
should be mailed to_________________________________________________
____________________________________________________________________
___________________________________________________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its
agent.
EXHIBIT B
MORTGAGE LOAN SCHEDULE
MLMT 2005 - LC1 (PSA Exhibit)
Mortgage
Loan Property Loan Property
# Name Seller Type
1 Glendale Galleria MLML Retail
2 Colonial Mall Bel Air CRF Retail
3 Four Forest Plaza and Lakeside Square CRF Office
3.01 Lakeside Square CRF Office
3.02 Four Forest Plaza CRF Office
4 CNL-Cirrus MOB Portfolio CRF Various
4.01 Trophy Club Medical Center CRF Other
4.02 Trophy Club Professional Building CRF Office
4.03 Park Cities Medical Plaza CRF Office
4.04 Coppell Healthcare Center CRF Office
4.05 Xxxx Lakes Health Plaza CRF Office
4.06 Meridian Medical Tower CRF Office
4.07 Valley View Medical Building CRF Office
4.08 Meridian Professional Building CRF Office
5 Colonial Mall Greenville CRF Retail
6 Holiday Hills Village LaSalle Manufactured Housing
7 Xxxxxxx of Chantilly LaSalle Manufactured Housing
8 Samaritan Medical Tower MLML Office
9 TownePlace Suites Portfolio MLML Hospitality
9.01 TownePlace Suites Miami Lakes MLML Hospitality
9.02 TownePlace Suites Miami Airport MLML Hospitality
9.03 TownePlace Suites Mt. Laurel MLML Hospitality
9.04 TownePlace Suites Ft. Worth MLML Hospitality
9.05 TownePlace Suites Silicon Valley MLML Hospitality
9.06 TownePlace Suites Portland MLML Hospitality
9.07 TownePlace Suites Boston MLML Hospitality
10 Green Acres LaSalle Manufactured Housing
00 Xxxxxxx Xxxx Xxxxxxxxxx XxXxxxx Multifamily
12 Remington Lakes I & II LaSalle Industrial
13 Inland Montecito Crossing LaSalle Retail
14 Somerset Place Tower I & II LaSalle Xxxxxx
00 Xx. Xxxx'x Xxxxxxx Xxxxx XXXX Xxxxxx
16 Springhouse at Brandywine LaSalle Multifamily
17 8 Penn Center MLML Xxxxxx
00 Xxx Xxxxxxxxx Xxxxx XxXxxxx Xxxxxx
00 Xxxxx Xxxxx Xxxxxxxxxx XxXxxxx Xxxxxxxxxxx
00 Xxxx Xxxxxxx Apartments LaSalle Multifamily
00 Xxxxxxxx Xxxxxxx XxXxxxx Manufactured Housing
22 Kona Crossroads Shopping Center MLML Retail
00 Xxxxxxx Xxxxx XxXxxxx Manufactured Housing
00 Xxxxxxxx Xxxxxxxxx - Xxxxx XxXxxxx Hospitality
00 Xxxxxx Xxxxxxx XxXxxxx Manufactured Housing
00 Xxxxxxxx Xxxxxx Xxxxxxxxxx XxXxxxx Multifamily
27 Xxxxxxxx Portfolio II LaSalle Various
27.01 Greensburg Crossing LaSalle Retail
27.02 X.X. Xxxxxxxx Office Building LaSalle Office
27.03 The Centre at Shiloh Crossing LaSalle Retail
27.04 County Line Corners LaSalle Retail
27.05 XxXxxxxxx #1 LaSalle Retail
27.06 XxXxxxxxx #2 LaSalle Retail
27.07 White Castle LaSalle Retail
28 Courtyard by Marriott Milwaukee CRF Hospitality
29 Xxxxxxxx Portfolio I LaSalle Various
29.01 Heartland Village Shoppes LaSalle Retail
29.02 Holiday Center LaSalle Retail
29.03 Park 52 LaSalle Industrial
29.04 Fairview Corners LaSalle Retail
29.05 XxXxxxxxx Building #3 LaSalle Retail
29.06 White River Landing LaSalle Retail
29.07 Franklin Shoppes LaSalle Retail
00 Xxxxx Xxxxxxxxxx XXX Xxxxxxxxxxx
00 Xxxxxxxx Xxxx Center CRF Retail
00 Xxx Xxxxx xx Xx. Xxxxxxx XxXxxxx Manufactured Housing
33 Homewood Suites CRF Hospitality
34 Rochester Hills Shopping Center LaSalle Retail
00 Xxxxx Xxxx Xxxxxxxxxx XxXxxxx Multifamily
36 East Empire Industrial Portfolio LaSalle Industrial
37 00000 Xxxxxxx Xxxxxxxxx XXXX Xxxxxx
38 One Edgewater Drive LaSalle Office
39 Lone Hill Shopping Center MLML Retail
40 000 Xxxxx Xxxxxx XxXxxxx Office
41 The Park at Spring Creek LaSalle Multifamily
42 Harbour Center MLML Office
43 Comfort Inn and Suites LaSalle Hospitality
44 Xxxxxxx Xxxxx Office Building LaSalle Office
45 DFW East-West LaSalle Office
45.01 DFW West LaSalle Office
45.02 DFW East LaSalle Office
46 Casa del Sol Resort LaSalle Manufactured Housing
47 Pines Professional Campus MLML Office
48 DRS Tactical Systems Office Building LaSalle Xxxxxx
00 Xxxx Xxxxxx Xxxxxxxx Xxxx XXXX Xxxxxx
00 Xxxxxxx Xxxx Apartments LaSalle Multifamily
51 Hampton Inn - Aventura MLML Hospitality
00 Xxxxxxxx Xxxx Xxxxxxxxxx XxXxxxx Multifamily
53 Vacaville Nugget Market LaSalle Retail
54 Bonanza Village LaSalle Manufactured Housing
55 Lowes - Ames, IA LaSalle Retail
56 Holiday Inn Express - Meadowlands MLML Hospitality
00 Xxxxxx Xxxx Xxxxxxxxxx XxXxxxx Multifamily
00 Xxxxxxxx Xxxxxx XXX Office
59 Xxxxxxxx Xxxx Shopping Center CRF Retail
60 Community Self Storage Portfolio LaSalle Self Storage
60.01 0000 Xxxxx Xxxxxxxx Xxxxxx XxXxxxx Self Storage
60.02 0000 Xxxxx Xxxx Xxxx XxXxxxx Self Storage
60.03 0000 Xxxxx Xxxxxx Xxxx Xxxxxxxxx XxXxxxx Self Storage
60.04 000 Xxxxx Xxxxxx XxXxxxx Self Storage
60.05 0000 Xxxx 0xx Xxxxxx LaSalle Self Storage
61 Suntrust Building MLML Office
62 Food 4 Less Retail Center LaSalle Retail
00 Xxxxxxxxx Xxxxxxx XxXxxxx Multifamily
64 Barnegat Self Storage LaSalle Self Storage
00 Xxxxxxx Xxxx Xxxxxxxxxx XxXxxxx Multifamily
00 Xxxxxxxxxx Xxxxxxxxxx XxXxxxx Multifamily
67 Campus Apartments Portfolio LaSalle Multifamily
00 Xxxxxxx Xxxxx XxXxxxx Retail
00 Xxx Xxxx Xxxx Xxxxxx XxXxxxx Retail
00 Xxxxxx Xxxxx/Xxxxxxxx Xxxx Apartments MLML Multifamily
71 Capitol Commerce Center LaSalle Office
72 Piazza Santaluz LaSalle Retail
00 Xxxxxx Xxxx Xxxxxxxxxx XxXxxxx Multifamily
74 Villa Cajon MHP LaSalle Manufactured Housing
75 1100 South Xxxxx LaSalle Xxxxxx
00 Xxxxxxxx Xxxxxx Xxxxxxxx XxXxxxx Xxxxxx
00 Holiday Inn Express - Greenville, SC LaSalle Hospitality
00 Xxxx Xxxx & Xxxxxxxxxx Xxxxxxx XXXX Retail
78.01 Roundgrove Center MLML Retail
78.02 Park Lane Center MLML Retail
79 Stor Quest Self Storage LaSalle Self Storage
80 Tinton Falls Professional Building LaSalle Xxxxxx
00 0000 Xxxx Xxxx Xxxx XxXxxxx Xxxxxx
82 Safeway Market Place (Yale & Monaco) MLML Retail
83 Holiday Inn Express - Cambridge LaSalle Hospitality
84 Walgreens - Greenfield, MA LaSalle Retail
00 Xxxxxxxx Xxxxx XxXxxxx Retail
00 Xxxxxxxx Xxxxxxxxx - Xxxxxxxxxx XxXxxxx Retail
87 Pasadena MHP LaSalle Manufactured Housing
88 Walgreens-Idlewild LaSalle Retail
89 Aspen Mini-Storage LaSalle Self Storage
90 Walgreens - Clinton, UT LaSalle Retail
91 County Fair Shopping Center LaSalle Retail
00 Xxxxxxxxx - Xx. Xxxxxxxx, XX LaSalle Retail
93 Corona Self Storage LaSalle Self Storage
94 Arbor Oaks MHP LaSalle Manufactured Housing
00 Xxxxxx Xxxxxxxxxxx XxXxxxx Retail
96 Stronghold Self Storage LaSalle Self Storage
96.01 Eastgate Stronghold SS LaSalle Self Storage
96.02 Blue Ash Stronghold SS LaSalle Self Storage
96.03 Richmond Stronghold SS LaSalle Self Storage
00 Xxx Xxxx Xxxxx XxXxxxx Retail
98 Maple Del Manor MHP LaSalle Manufactured Housing
99 Washington Mutual--Santa Monica, CA LaSalle Office
100 Piazza di Xxxxxx XxXxxxx Retail
101 Baseline Mini Storage LaSalle Self Storage
000 Xxxxx Xxxxx Office LaSalle Office
000 Xxxxxxx Xxxxxxxxxxxx Xxxxxxxx XxXxxxx Office
104 Governors Walk LaSalle Retail
105 FedEx - Fayetteville, NC LaSalle Industrial
106 Federal Storage LaSalle Self Storage
000 Xxxxxxx Xxxxxxx Xxxxxxxxxx XxXxxxx Multifamily
108 Calexico Mini Storage LaSalle Self Storage
109 Xxxxxxxxx Crossing LaSalle Retail
110 Blythe Mini Storage LaSalle Self Storage
111 Xxxxxxxx Self Storage LaSalle Self Storage
000 Xxxxxxx Xxxxxxx Xxxxxxxxxx XxXxxxx Multifamily
000 Xxxxxxxxxxxxx Xxxxxxx LaSalle Multifamily
000 Xxxxxxx Xxxxx XxXxxxx Office
000 Xxxxxxx Xxxxxxx XxXxxxx Xxxxxx
000 Xxxxxxx xx Xxxxxxxx Xxxxx XxXxxxx Retail
000 Xxxxxxxx Xxxxxx Xxxxxxxxxx XxXxxxx Multifamily
118 Xxxxxxxx Self Storage LaSalle Self Storage
000 Xxxxxxx Xxxx XxXxxxx Retail
120 Cool N' Dry Self Storage - Warner Robins LaSalle Self Storage
121 Richmond Retail Center LaSalle Retail
122 Monroe Retail LaSalle Retail
123 American Self Storage-East Mesa LaSalle Self Storage
000 Xxxxxxx Xxxxxxx Xxxxxxxxxx XxXxxxx Multifamily
125 Xxxxxxxxx MHP LaSalle Manufactured Housing
126 Country Xxxxxxx MHP LaSalle Manufactured Housing
127 Towne Self Storage LaSalle Self Storage
000 Xxxxxx Xxxxxxx XxXxxxx Retail
000 Xxxxxxxxxx Xxxxxx Xxxxxxxxxx XxXxxxx Multifamily
130 South Towne Self Storage LaSalle Self Storage
131 Belair Self Storage LaSalle Self Storage
000 Xxxxxxxx Xxxxxxx XxXxxxx Retail
000 Xxxxxxxxx Xxxxxxxxxx XxXxxxx Multifamily
000 Xxxxxxx Xxxxxxx XxXxxxx Multifamily
135 Skyway Best Storage LaSalle Self Storage
000 Xxxx Xx. Xxxxxxxxx XxXxxxx Retail
000 Xxxxxx Xxxxx XxXxxxx Retail
138 Cool N' Dry Self Storage- Ft. Valley LaSalle Self Storage
139 Foxes Den Self Storage LaSalle Self Storage
140 Ample Storage LaSalle Self Storage
141 265 Super Storage LaSalle Self Storage
142 Kenmore Storefront Building LaSalle Retail
Loan
# Address
1 2148 Glendale Galleria & 000 Xxxx Xxxxxxxx
2 3299 Bel Air Mall
3 Various
3.01 00000 Xxxxx Xxxxx
3.02 00000 Xxxxx Xxxxx
4 Various
4.01 0000 Xxxxx Xxxxxxx 114
4.02 0000 Xxxxx Xxxxxxx 000
4.03 0000 Xxxxxx Xxxxx
4.04 000 Xxxx Xxxxx Xxxx Xxxx
4.05 9900 North Central Expressway
4.06 00000 Xxxxx Xxxxxxxx Xxxxxx
4.07 5744 LBJ Freeway (Interstate Highway 635)
4.08 00000 Xxxxx Xxxxxxxx Xxxxxx
5 000 Xxxxxxxxx Xxxxxxxxxx Xxxxxxxxx
6 0000 Xxxx 00xx Xxxxxx
7 0000 Xxxxxxx Xxxxxxx
8 0000 Xxxxxxxx Xxxxxxxxx
9 Various
9.01 0000 Xxxxxxxxx 000xx Xxxxxx
9.02 00000 Xxxxxxxxx 00xx Xxxxxx
9.03 000 Xxxxxxx Xxxxxxx
9.04 0000 Xxxxxxxxxxxxx Xxxxx
9.05 00000 Xxxxx Xxxxxxxxx
9.06 000 Xxxxxxxxx Xxxxx
9.07 00 Xxxxxxxxxxxxx Xxxxx
00 0000 Xxxxxx Ridge Road
11 Various
12 000 Xxxxxxxx Xxxxxxx
13 0000 Xxxxx Xxxxxxx Xxxxx
14 2301 and 0000 Xxxx Xxx Xxxxxx Xxxx
15 0000 00xx Xxxxxx
16 000 Xxxxxxxx Xxxx
17 1628 Xxxx X. Xxxxxxx Xxxxxxxxx
00 Xxx Xxxxxxxxx Xxxxx
19 000-00 Xxxx Xxxxxxxxxx Xxxxxx
20 1575 Tenaka Drive
21 00000 Xxxxx Xxxxxxxxx Xxxxxx
22 00-0000 Xxxxx Xxxxxx
23 0000 Xxxxxxx Xxxxx Xxxxxxxxx
24 5000, 5010, 0000 Xxxxxxx Xxxxx Xxxxx
25 00000 Xxxx Xxxxxx Xxxxxx
26 47 Spalding Trail
27 Various
27.01 0000-0000 Xxxxx Xxxxxxxxxx Crossing
27.02 000 Xxxxx Xxxxxxx Xxxxxx
27.03 10224 - 00000 Xxxx XX Xxxxxxx 36
27.04 0000 Xxxxx Xxxx 000 Xxxxx
27.05 0000 Xxxxx Xxxxxxx Xxxxxx
27.06 0000 Xxxxx Xxxxxxx Xxxxxx
27.07 0000 Xxxxxxxx Xxxx
28 000 Xxxx Xxxxxxxx Xxxxxx
29 Various
29.01 0000 Xxxxxxxx Xxxx
29.02 0000 00xx Xxxxxx
29.03 0000-0000 Xxxxxxxxxx Xxxx
29.04 000 Xxxxx Xxxxx Xxxx 000
29.05 0000 Xxxxx Xxxxxxx Xxxxxx
29.06 000 Xxxxx Xxxxx Xxxx 000
00.00 0000-0000 Xxxxx Xxxxxx
30 0000 Xxxxx Xxxxx
31 0000 Xxxxxxxx Xxxx
32 0000 Xxxxx Xxxxxx Xxxxxx
00 00000 Xxxxxx Xxxxxxxxx
34 1400 Xxxxxx Xxxxxxxxx
00 0000 Xxxxxxxxx Xxxx
36 63065-63085 Xxxxxxxxx 00xx Xxxxxx
00 00000 Xxxxxxx Xxxxxxxxx
00 One Edgewater Drive
39 1830 East Xxxxx 00
00 000 Xxxxx Xxxxxx
41 00000 Xxxxxxx Xxxxxxx
00 0 Xxxxx Xxxxxx
00 00 American Legion Xxxxxxx
00 000-000 Xxxxxx Xxxxxx
45 Various
45.01 0000 Xxxxxxx Xxxxxxx
45.02 0000 Xxxx Xxxxxxx Xxxxxxx
46 00000 Xxxxx 00xx Xxxxxx
47 17850 Xxxxxxxxx 0xx Xxxxxx
00 0000 Xxxxxxxx Xxxxxx
49 17260-17330 Bear Xxxxxx Xxxx
00 000 Xxxx Xxxxx
51 1000 South Federal Xxxxxxx
00 000 Xxxxx Xxxxx
53 000-000 Xxxxxx Xxxxxx Xxxxxxx
54 3700 East Xxxxxxx Xxxxxx
00 000 Xxxxxxx Xxxx
56 000 Xxxxxxxxx Xxxxx Xxxx
00 0000 Xxxxxxxxxx and 303 Xxx Xxxxxxx
00 0000 Xxxxx Xxxxxxxxxx Avenue
59 0000-0000 Xxxx Xxxx Xxxxxx and 00-00 Xxxxx Xxxxxxx Xxxxx
60 Various
60.01 0000 Xxxxx Xxxxxxxx Xxxxxx
60.02 0000 Xxxxx Xxxx Xxxx
60.03 0000 Xxxxx Xxxxxx Xxxx Xxxxxxxxx
60.04 000 Xxxxx Xxxxxx
60.05 3609 West 0xx Xxxxxx
00 00000 Xxxxx Xxxxxxxxx
62 000-000 Xxxxxxx Xxxxxx
00 000 Xxxxxxxxx Xxxxx
00 00 & 00 Xxxxx Xxxx Xxxxxx
65 1604 Xxxx Road
66 2150 Xxxxxxx Xxxxx
00 0000 Xxxxxx Xxxxxx, 0000 Xxxxxxxxxxx Court, 00 Xxxxx Xxxxx Xxxxxx, and 0000 Xxxxxx Xxxxxx
68 0000-0000 Xxxxxxxxx Xxxxxxx Xxxx Xxxx
69 00 Xxxx Xxxxx Xxxxxx
00 0000 Xxxxx Xxxxxxxxxxx & 0000 Xxxxx Xxxxxxxxx Xxxxxx
71 000 Xxxxx Xxxxxxxx Xxxxxx
72 14677 and 14701 Xxx Xxxxxxx
00 000 Xxxxxx Xxxx
74 000 Xxxx Xxxxxxx Xxxxxx
75 0000 Xxxxx Xxxxx Xxxxxx
76 95 White Bridge Road
77 000 Xxxxx Xxxx Xxxxxx
78 Various
78.01 000 Xxxx Xxxxx Xxxxx Xxxx
78.02 000 Xxxxx Xxx Xxxxxxx Xxxx
79 24850 Las Xxxxxx Xxxx
00 000 Xxxxxxxxxx Xxxxxx
81 0000 Xxxx Xxxx Xxxx
82 6460 East Xxxx Xxxxxx
00 0000 Xxxxx Xxxxxxx
84 000 Xxxxxxx Xxxxxx
85 000 Xxxxxx Xxxx
86 5000, 5010, 0000 Xxxxxxx Xxxxx Xxxxx
87 0000 Xxxxxx Xxxx, 0000 Xxxxxxx Street, and 0000 Xxxxxx Xxxxx
88 0000 Xxxxxxxx-Xxxx Xxxx Xxxx
89 000 Xxxxxxxx Xxxx
90 1800 North 0000 Xxxx
00 00 Xxxx Xxxx
92 4901 Spring Xxxxxx
00 0000 Xxxxxx Xxxx
94 36323 Arbor Xxxx Xxxxx
00 000 Xxxxx Xxxxxxxxxx Xxxxxx
96 Various
96.01 000 Xxx Xxxxx Xxxxx 00
96.02 0000 Xxxx Xxxxxx Xxxx
96.03 000 Xxxxxxxx Xxxx
97 0000 0xx Xxxxxx Xxxx
98 0000 Xxxxxx Xxxxx Xxxx
99 000 00xx Xxxxxx
100 00000 Xxx Xxxxxxx Xxxxx
101 18375 Southwest Xxxxxxxx Xxxx
000 0000 Xxxxx Xxxxxx
103 000 Xxxxx Xxxxxx Xxxxxxxxx
104 0000 Xxxxxxx 00 Xxxx
105 000 Xxxxxx Xxxxx
000 0000 Xxxxx Xxxxxxx Xxxxxxx
107 480 Xxxx 0xx Xxxxx
000 00 Xxxx Xxxxxxx 98th
109 000 Xxxxxxxxx Xxxx
110 000 Xxxxx Xxxxxxx Xxxxxx
111 5128 West 12600 South
112 0000-0000 Xxxxx Xxxxx Xxxxxx
000 000 Xxxx Xxxxxx
114 000 Xxxxx Xxxxx Xxxx
115 0000 Xxxx Xxxxx Xxxxxxx Xxxx
116 0000 Xxxxxxxxx Xxxxxxxxxx Xxxxxxxxx
117 36290 Lake Xxxxx Xxxxxxxxx
000 0000 Xxxxxxxx Xxxx
119 0000 Xxxxxxx Xxxx
120 000 Xxxx Xxxxxx Xxxxxxx
121 00000 Xxxxxxxx Xxxxxx
122 14991-15045 North Kelsey Xxxxxx
000 0000 Xxxx Xxxxxx Xxxxx
124 0000-0000 Xxxxxxx Xxxxxx
125 0000 Xxxx Xxxxxxxxxx Xxxxxx
126 1250 0xx Xxxxxx
000 0000 Xxxxx 0000 Xxxx
128 0000 Xxx Xxxxxxxxx Xxxx
000 Xxx Xxxxxxxxxx Xxxx
130 9349 South 000 Xxxx
000 0000 Xxxxx Xxxxx
132 000-000 Xxxxxxxxx Xxxx
133 000 Xxxxx Xxxxxx
134 000 Xxxxxxx Xxxxxxx Xxxxx
135 0000 Xxxxxx Xxxxx
000 000 Xxxxx Xxxxx Street
137 0000 Xxxxx Xxxxx Xxxxxx Xxxxxx
138 1091 Xxxxx Xxxxxxx
000 000 Xxxxx Xxxxxxxx Drive
140 2900 Xxxx Xxxxxxx Xxxxxxxxx
000 0000 Xxxxx Xxx Xxxxxxxx Xxxx
142 0000 Xxxxxxxxx Xxxxxxx Xxx
Loan Level
Property Level
IO
Cutoff Monthly
Loan Zip Balance Original Debt
# City County State Code (12/1/2005) Balance Service
1 Xxxxxxxx Xxx Xxxxxxx XX 00000 125,702,137.37 126,000,000.00
2 Xxxxxx Xxxxxx XX 00000 122,400,000.00 122,400,000.00 548,532.34
0 Xxxxxx Xxxxxx XX 00000 60,670,000.00 60,670,000.00 296,408.90
3.01 Dallas Xxxxxx XX 00000 33,510,000.00 33,510,000.00
3.02 Xxxxxx Xxxxxx XX 00000 27,160,000.00 27,160,000.00
4 Various Various Various Various 57,655,000.00 57,655,000.00 262,661.23
4.01 Xxxxxx Xxxx Xxxxxx XX 00000 16,380,000.00 16,380,000.00
4.02 Xxxxxx Xxxx Xxxxxx XX 00000 11,375,000.00 11,375,000.00
4.03 Xxxxxx Xxxxxx XX 00000 10,575,000.00 10,575,000.00
4.04 Coppell Xxxxxx XX 00000 4,940,000.00 4,940,000.00
4.05 Xxxxxx Xxxxxx XX 00000 4,615,000.00 4,615,000.00
4.06 Xxxxxxxx Xxxx Xxxxxxxx XX 00000 4,290,000.00 4,290,000.00
4.07 Xxxxxx Xxxxxx XX 00000 3,315,000.00 3,315,000.00
4.08 Xxxxxxxx Xxxx Xxxxxxxx XX 00000 2,165,000.00 2,165,000.00
5 Xxxxxxxxxx Xxxx XX 00000 44,675,000.00 44,675,000.00 199,519.07
0 Xxxxxxx Xxxxxxx Xxxxx XX 00000 37,600,000.00 37,600,000.00 168,531.99
0 Xxxxxxxxx Xxxxxxx XX 00000 34,800,000.00 34,800,000.00 155,393.68
0 Xxx Xxxxxxx Xxx Xxxxxxx XX 00000 34,500,000.00 34,500,000.00 169,240.87
9 Various Various Various Various 31,995,000.00 31,995,000.00 143,746.98
9.01 Xxxxx Xxxxx Xxxxx-Xxxx XX 00000 5,711,075.05 5,711,075.05
9.02 Xxxxx Xxxxx-Xxxx XX 00000 4,997,190.67 4,997,190.67
9.03 Xxxxx Xxxxxx Xxxxxxxxxx XX 00000 4,867,393.51 4,867,393.51
9.04 Xxxx Xxxxx Xxxxxxx XX 00000 4,867,393.51 4,867,393.51
9.05 Xxxxxx Xxxxxxx XX 00000 4,607,799.19 4,607,799.19
9.06 Xxxxxxxxxxx Xxxxxxxxxx XX 00000 4,283,306.29 4,283,306.29
9.07 Xxxxxxxxx Xxxxxxxxx XX 00000 2,660,841.78 2,660,841.78
10 Xxxxxxxxxxxxx Xxxxxx XX 00000 30,560,000.00 30,560,000.00 138,784.49
11 Gainesville Alachua FL Various 29,000,000.00 29,000,000.00 131,822.45
00 Xxxxxxxxxxx Xxxx XX 00000 28,300,000.00 28,300,000.00 139,639.54
00 Xxx Xxxxx Xxxxx XX 00000 28,285,242.00 28,285,242.00 118,798.02
00 Xxxx Xxxxxxx XX 00000 28,000,000.00 28,000,000.00 116,867.59
00 Xxxxx Xxxxxx Xxx Xxxxxxx XX 00000 24,000,000.00 24,000,000.00 108,526.67
00 Xxxx Xxxxxxx Xxxxxxx XX 00000 21,500,000.00 21,500,000.00 95,841.23
00 Xxxxxxxxxxxx Xxxxxxxxxxxx XX 00000 18,900,000.00 18,900,000.00
00 Xxxxxxx Xxxxxxx XX 00000 17,520,000.00 17,520,000.00 84,375.83
00 Xxxxxxxxx Xxxxx Xxxxx XX 00000 17,450,000.00 17,450,000.00 85,365.64
00 Xxxxxxxxx Xxxxx Xxxxx XX 00000 17,250,000.00 17,250,000.00 84,387.24
00 Xxxxx Xxxx Xxxxx Xxx XX 00000 17,155,000.00 17,155,000.00 76,457.89
00 Xxxxxx-Xxxx Xxxxxx XX 00000 16,800,000.00 16,800,000.00 75,046.03
00 Xxx Xxxx Xxxxxx Xxxxx XX 00000 16,125,000.00 16,125,000.00 71,867.30
24 Ronkonkoma Xxxxxxx XX 00000 16,000,000.00 16,000,000.00
00 Xxxxxx Xxxxxxxxx XX 00000 14,400,000.00 14,400,000.00 64,544.17
26 Xxxxxx Xxxxxx XX 00000 14,300,000.00 14,300,000.00 64,941.70
27 Various Various IN Various 14,249,222.22 14,292,000.00
27.01 Xxxxxxxxxx Xxxxxxx XX 00000 2,905,632.59 3,000,000.00
27.02 Xxxxxxxxx Xxxxxxx XX 00000 2,866,890.82 2,568,000.00
27.03 Avon Xxxxxxxxx XX 00000 2,471,724.79 2,552,000.00
27.04 Xxxxxxxxx Xxxxxxx XX 00000 2,200,532.41 2,272,000.00
27.05 Xxxxxxxxxxxx Xxxxxx XX 00000 1,782,121.32 1,840,000.00
27.06 Xxxxxxxxxxxx Xxxxxx XX 00000 1,704,637.79 1,760,000.00
27.07 Xxxxxxxxxxxx Xxxxxx XX 00000 317,682.50 300,000.00
00 Xxxxxxxxx Xxxxxxxxx XX 00000 14,000,000.00 14,000,000.00 63,401.85
29 Various Various IN Various 13,838,455.39 13,880,000.00
29.01 Camby Xxxxxxxxx XX 00000 4,705,074.83 4,760,000.00
29.02 Xxxxxxxx Xxxxxxxxxxx XX 00000 2,965,383.30 3,000,000.00
29.03 Xxxxxxxxxxxx Xxxxxx XX 00000 2,016,460.64 1,920,000.00
29.04 Xxxxxxxxx Xxxxxxx XX 00000 1,304,768.65 1,320,000.00
29.05 Xxxxxxxxxxxx Xxxxxx XX 00000 1,107,076.43 1,120,000.00
29.06 Xxxxxxxxx Xxxxxxx XX 00000 1,067,537.99 1,080,000.00
29.07 Xxxxxxxx Xxxxxxx XX 00000 672,153.55 680,000.00
00 Xxxxx XxXxxx XX 00000 13,680,000.00 13,680,000.00 58,369.58
00 Xxxxxx Xxxx Xxxxxxx XX 00000 13,100,000.00 13,100,000.00 61,428.99
32 Xxxxxxxx Xxxxxxxx XX 00000 13,000,000.00 13,000,000.00 57,939.53
00 Xxxxxx Xxxxx Xxxxxx XX 00000 12,685,761.07 12,700,000.00
00 Xxxxxxxxx Xxxxx Xxxxxxx XX 00000 12,000,000.00 12,000,000.00 52,012.50
35 Columbus Xxxxxxxx XX 00000 11,881,819.91 12,000,000.00
00 Xxxx Xxxxxxxxx XX 00000 11,850,000.00 11,850,000.00 55,867.81
00 Xxxxxx Xxx Xxxxxxx XX 00000 11,800,000.00 11,800,000.00 49,560.41
00 Xxxxxxx Xxxxxxx XX 00000 11,680,000.00 11,680,000.00 56,250.56
00 Xxxxxxxx Xxx Xxxxxxx XX 00000 11,500,000.00 11,500,000.00 49,388.64
00 Xxxxxxxxxx Xxxxxxx XX 00000 11,360,000.00 11,360,000.00 49,910.37
00 Xxxxxxx Xxxxxx XX 00000 11,040,000.00 11,040,000.00 50,836.39
00 Xxxxxxx Xxxxxxx Xxxx XX 00000 10,860,000.00 10,860,000.00
00 Xxxxxx Xxxxxxx XX 00000 10,850,000.00 10,850,000.00 52,895.01
00 Xxxxxxxxx Xxxxxxxx XX 00000 10,800,000.00 10,800,000.00 48,088.75
45 Various Various TX Various 10,350,000.00 10,350,000.00 49,259.41
45.01 Bedford Xxxxxxx XX 00000 5,584,532.37 5,584,532.37
45.02 Xxxxxx Xxxxxx XX 00000 4,765,467.63 4,765,467.63
46 Xxxxxx Xxxxxxxx XX 00000 10,230,000.00 10,230,000.00 45,766.82
00 Xxxxxxxx Xxxxx Xxxxxxx XX 00000 10,050,000.00 10,050,000.00
00 Xxxxxxxxx Xxxxxxx XX 00000 10,038,916.67 10,050,000.00
00 Xxxxxxxxxxx Xxx Xxxxxxxxxx XX 00000 9,560,000.00 9,560,000.00 46,444.56
00 Xxxxxxxx Xxxxxx Xxxxxxxx XX 00000 9,500,000.00 9,500,000.00
00 Xxxxxxxxxx Xxxxx Xxxxxxx XX 00000 9,473,540.76 9,500,000.00
00 Xxxxxxx Xxxx XX 00000 9,400,000.00 9,400,000.00 41,616.76
00 Xxxxxxxxx Xxxxxx XX 00000 9,230,000.00 9,230,000.00 43,437.62
00 Xxx Xxxxx Xxxxx XX 00000 9,180,000.00 9,180,000.00 41,767.41
00 Xxxx Xxxxx XX 00000 8,900,000.00 8,900,000.00 41,358.22
00 Xxxxxxxxx Xxxxxx XX 00000 8,367,193.29 8,380,000.00
00 Xxxxxx Xxxx Xxxx XX 00000 8,150,000.00 8,150,000.00
00 Xxxx Xxxx Xxxxx Xxxx Xxxxx XX 00000 7,823,964.79 7,850,000.00
59 Xxxx Xxxxxxxx XX 00000 7,500,000.00 7,500,000.00 33,394.97
60 Various Various IN Various 7,500,000.00 7,500,000.00
60.01 Muncie Xxxxxxxx XX 00000 2,200,383.51 2,200,383.51
60.02 Xxxxxxxx Xxxxxxxx XX 00000 1,682,646.21 1,682,646.21
60.03 Xxxxxxxx Xxxxxxx XX 00000 1,589,165.87 1,589,165.87
60.04 Xxxxxxxx Xxxxxxx XX 00000 1,021,093.00 1,021,093.00
60.05 Xxxxxx Xxxxxxxx XX 00000 1,006,711.41 1,006,711.41
00 Xxxxxxx Xxxx Xxxxxxx Xxxx XX 00000 7,420,000.00 7,420,000.00 33,922.71
62 Xxxxxxxx Xxxx XX 00000 7,300,000.00 7,300,000.00 34,354.78
63 MaComb XxXxxxxxx XX 00000 7,100,000.00 7,100,000.00 33,593.52
00 Xxxxxxxx Xxxxx XX 00000 7,050,000.00 7,050,000.00 32,344.32
00 Xxxx Xxxxx Xxxxx XX 00000 7,033,005.04 7,040,000.00
00 Xxxxxx Xxxx Xxxxxxx XX 00000 6,984,995.39 7,000,000.00
00 Xxxxxxx Xxxx XX 00000 6,750,000.00 6,750,000.00 29,085.94
00 Xxxxxxxxxx Xxxxxx XX 00000 6,552,779.09 6,560,000.00
00 Xxx Xxxx Xxxx XX 00000 6,105,000.00 6,105,000.00
70 Xxxxxxxxxxx Xxxxxx XX 00000 6,070,000.00 6,070,000.00
00 Xxxxxx Xxxx Xxxxxxx XX 00000 6,000,000.00 6,000,000.00
00 Xxx Xxxxx Xxx Xxxxx XX 00000 6,000,000.00 6,000,000.00 25,347.22
00 Xxxxx Xxxxxxxxx Xxxxxx XX 00000 5,925,000.00 5,925,000.00 27,283.12
00 Xx Xxxxx Xxx Xxxxx XX 00000 5,738,740.31 5,750,000.00
75 Xxxxxxxxx Xxxxxxxxxxx XX 00000 5,500,000.00 5,500,000.00 26,952.55
00 Xxxxxxxxx Xxxxxxxx XX 00000 5,250,000.00 5,250,000.00 24,241.45
00 Xxxxxxxxxx Xxxxxxxxxx XX 00000 5,192,191.22 5,200,000.00
00 Xxxxxxxxxx Xxxxxx XX 00000 4,819,992.91 4,825,000.00
78.01 Xxxxxxxxxx Xxxxxx XX 00000 3,060,312.96 3,063,492.06
78.02 Xxxxxxxxxx Xxxxxx XX 00000 1,759,679.95 1,761,507.94
79 Xxxxxxxx Xxxxxxxxx XX 00000 4,800,000.00 4,800,000.00 22,792.22
00 Xxxxxx Xxxxx Xxxxxxxx XX 00000 4,793,189.98 4,800,000.00
00 Xxxxxxxx Xxxxxxxxx XX 00000 4,600,000.00 4,600,000.00
00 Xxxxxx Xxxxxx XX 00000 4,400,000.00 4,400,000.00 20,439.32
00 Xxxxxxxxx Xxxxxxxxxx XX 00000 4,350,000.00 4,350,000.00
00 Xxxxxxxxxx Xxxxxxxx XX 00000 4,250,000.00 4,250,000.00 18,852.00
00 Xxxxxxxxxxx Xxxx XX 00000 4,000,000.00 4,000,000.00 18,385.19
86 Ronkonkoma Xxxxxxx XX 00000 4,000,000.00 4,000,000.00
00 Xxxxx Xxxxxxx XX 00000 4,000,000.00 4,000,000.00 17,743.06
00 Xxxxxxxx Xxxxxxxxxxx XX 00000 3,991,766.80 4,000,000.00
89 Aspen Xxxxxx XX 00000 3,945,635.68 3,950,000.00
90 Xxxxxxx Xxxxx XX 00000 3,431,723.61 3,450,000.00
00 Xxxxxxxxxxx Xx Xxxxxx XX 00000 3,427,948.36 3,450,000.00
92 Racine Xxxxxx XX 00000 3,425,000.00 3,425,000.00
93 Xxxxxx Xxxxxxxxx XX 00000 3,400,000.00 3,400,000.00 15,914.68
00 Xxxxxxxxxxx Xxxxx XX 00000 3,396,576.25 3,400,000.00
00 Xxxxxx Xxxxxxx XX 00000 3,300,000.00 3,300,000.00
96 Various Various Various Various 3,246,773.88 3,250,000.00
96.01 Cincinnati Xxxxxxxx XX 00000 1,402,764.37 1,404,158.22
96.02 Sycamore Xxxxxxxx XX 00000 1,383,007.13 1,384,381.34
96.03 Xxxxxxxx Xxxxx XX 00000 461,002.38 461,460.45
97 Xxxxxxxxx Xxxxxxx XX 00000 3,200,000.00 3,200,000.00
98 Xxxxxxx Xxxxxxx XX 00000 3,193,505.04 3,200,000.00
00 Xxxxx Xxxxxx Xxx Xxxxxxx XX 00000 3,100,000.00 3,100,000.00 14,222.33
000 Xxxxxx Xxxxxxx Xxx XX 00000 3,000,000.00 3,000,000.00 14,143.75
000 Xxxxxxxxx Xxxxxxxxxx XX 00000 2,996,807.93 3,000,000.00
000 Xxxxxx Xxxxxxxxx Xxx Xxxxxxxxx XX 00000 2,996,468.07 3,000,000.00
000 Xxxxxxx Xxxxxxxxx XX 00000 2,950,000.00 2,950,000.00
000 Xxxxxxxxx Xxxx Xxxxxxx XX 00000 2,747,029.39 2,750,000.00
000 Xxxxxxx Xxxx XX 00000 2,696,997.13 2,700,000.00
000 Xxxxxxx Xxxxxx XX 00000 2,630,000.00 2,630,000.00
000 Xxxxxxx Xxxxxxx XX 00000 2,597,249.19 2,600,000.00
000 Xxxxxxxx Xxxxxxxx XX 00000 2,577,369.58 2,580,000.00
000 Xxxxxxxxx Xxxx XX 00000 2,557,382.50 2,560,000.00
000 Xxxxxx Xxxxxxxxx XX 00000 2,425,000.00 2,425,000.00 11,432.86
000 Xxxxxxxx Xxxx Xxxx XX 00000 2,346,389.45 2,350,000.00
000 Xxxxxxxx Xxxxx Xxxxxx XX 00000 2,250,000.00 2,250,000.00 10,664.84
000 Xxxxxxxxxxxxx Xxxx XX 00000 2,050,000.00 2,050,000.00 9,457.05
000 Xxxxxxx Xxxxxxxxxxxx XX 00000 2,046,782.76 2,050,000.00
115 Xxxxxxxxx Xxxxxxx XX 00000 2,035,000.00 2,035,000.00 9,920.86
000 Xxxxxx Xxxxxxxx XX 00000 1,997,891.99 2,000,000.00
000 Xxxxxxxx Xxxx XX 00000 1,996,143.20 2,000,000.00
000 Xxxxx Xxxxx XX 00000 1,996,057.85 2,000,000.00
119 Xxxxxxxx Xxxx XX 00000 1,923,039.25 1,925,000.00
000 Xxxxxx Xxxxxx Xxxxxxx XX 00000 1,900,000.00 1,900,000.00
000 Xxxxxxx Xxxxxx XX 00000 1,900,000.00 1,900,000.00 9,182.45
000 Xxxxxx Xxxxxxxxx XX 00000 1,873,027.49 1,875,000.00
000 Xxxx Xxxxxxxx XX 00000 1,821,418.45 1,825,000.00
000 Xxxxxxxx Xxxxxxxxxx XX 00000 1,813,013.38 1,815,000.00
000 Xxxxxxxxxxxx Xxxxxx XX 00000 1,673,200.84 1,675,000.00
000 Xxxxxx Xxxxxx XX 00000 1,638,297.46 1,640,000.00
000 Xxxx Xxxxxx Xxxx Xxxx XX 00000 1,598,232.17 1,600,000.00
000 Xxxxxx Xxxxxxxx XX 00000 1,596,811.77 1,600,000.00
000 Xxxxxxxx Xxxxxxxx XX 00000 1,523,308.70 1,525,000.00
000 Xxxxx Xxxx Xxxx XX 00000 1,498,358.16 1,500,000.00
000 Xxxxxxxx Xxxxxxxx XX 00000 1,477,018.73 1,480,000.00
000 XxXxxxxxx Xxxxx XX 00000 1,448,427.76 1,450,000.00
000 Xxxxxxxx Xxxxxxx XX 00000 1,323,463.09 1,325,000.00
000 Xxxxxxxxxx Xxxxxxx XX 00000 1,300,000.00 1,300,000.00
000 Xxxxx Xxxxx Xxxxx Xxxxxxx XX 00000 1,297,381.32 1,300,000.00
136 Xxxxxxxxxxxx Xxxxxxx XX 00000 1,258,638.92 1,260,000.00
000 Xxxxxxx Xxxx XX 00000 1,220,664.33 1,225,000.00
000 Xxxx Xxxxxx Xxxxx XX 00000 1,100,000.00 1,100,000.00
000 Xxxxxxxxxxxx Xxxxxx XX 00000 1,100,000.00 1,100,000.00
000 Xxxxxxx Xxxxxxxx XX 00000 1,068,884.97 1,070,000.00
000 Xxxxxxxxxx Xxxxxxxxxx XX 00000 998,516.57 1,000,000.00
000 Xxxxxxx Xxxx XX 00000 996,593.55 1,000,000.00
Trustee
IO Monthly Annual Primary Master &
Annual P&I P&I Interest Servicing Servicing Paying
Loan Debt Debt Debt Rate Fee Fee Agent Subservicer
# Service Service Service (%) Rate Rate Fee Fee
1 645,178.65 7,742,143.77 4.6496 0.00000 0.01000 0.00130 0.02000
2 6,582,388.10 680,004.57 8,160,054.84 5.3041 0.01000 0.01000 0.00130
3 3,556,906.83 355,303.38 4,263,640.56 5.7824 0.01000 0.01000 0.00130
3.01
3.02
4 3,151,934.79 323,462.72 3,881,552.64 5.3920 0.01000 0.01000 0.00130
4.01
4.02
4.03
4.04
4.05
4.06
4.07
4.08
5 2,394,228.80 247,688.55 2,972,262.60 5.2858 0.01000 0.01000 0.00130
6 2,022,383.89 208,911.31 2,506,935.72 5.3050 0.01000 0.01000 0.00130
7 1,864,724.17 192,921.98 2,315,063.80 5.2850 0.01000 0.01000 0.00130
8 2,030,890.42 202,561.64 2,430,739.68 5.8060 0.01000 0.01000 0.00130
9 1,724,963.77 193,005.56 2,316,066.72 5.3175 0.01000 0.01000 0.00130
9.01
9.02
9.03
9.04
9.05
9.06
9.07
10 1,665,413.89 171,127.21 2,053,526.52 5.3750 0.01000 0.01000 0.00130
11 1,581,869.44 169,894.69 2,038,736.28 5.3800 0.00000 0.01000 0.00130 0.10000
12 1,675,674.44 166,772.68 2,001,272.16 5.8400 0.01000 0.01000 0.00130
13 1,425,576.20 5.0400 0.01000 0.01000 0.00130
14 1,402,411.11 149,284.95 1,791,419.40 4.9400 0.01000 0.01000 0.00130
15 1,302,320.00 134,049.17 1,608,590.04 5.3520 0.01000 0.01000 0.00130
16 1,150,094.72 5.2760 0.00000 0.01000 0.00130 0.02000
17 109,611.86 1,315,342.32 5.6930 0.00000 0.01000 0.00130 0.05000
18 1,012,510.00 101,686.15 1,220,233.80 5.7000 0.01000 0.01000 0.00130
19 1,024,387.71 102,277.31 1,227,327.72 5.7900 0.01000 0.01000 0.00130
20 1,012,646.88 101,105.08 1,213,260.96 5.7900 0.01000 0.01000 0.00130
21 917,494.67 94,996.36 1,139,956.26 5.2750 0.01000 0.01000 0.00130
22 900,552.33 93,155.60 1,117,867.20 5.2870 0.01000 0.01000 0.00130
23 862,407.55 89,292.70 1,071,512.37 5.2750 0.01000 0.01000 0.00130
24 108,633.78 1,303,605.39 6.5600 0.01000 0.01000 0.00130
25 774,530.00 80,008.59 960,103.05 5.3050 0.01000 0.01000 0.00130
26 779,300.35 80,075.89 960,910.68 5.3750 0.01000 0.01000 0.00130
27 83,313.46 999,761.52 5.7400 0.01000 0.01000 0.00130
27.01
27.02
27.03
27.04
27.05
27.06
27.07
28 760,822.22 78,265.11 939,181.32 5.3600 0.01000 0.01000 0.00130
29 80,911.76 970,941.12 5.7400 0.01000 0.01000 0.00130
29.01
29.02
29.03
29.04
29.05
29.06
29.07
30 700,435.00 73,855.80 886,269.60 5.0500 0.01000 0.01000 0.00130
31 737,147.92 74,791.84 897,502.08 5.5500 0.01000 0.01000 0.00130
32 695,274.31 71,987.91 863,854.92 5.2750 0.01000 0.01000 0.00130
33 71,092.60 853,111.20 5.3720 0.01000 0.01000 0.00130
34 624,150.00 65,375.36 784,504.32 5.1300 0.01000 0.01000 0.00130
35 65,967.46 791,609.52 5.2100 0.01000 0.01000 0.00130
36 670,413.75 67,878.99 814,547.88 5.5800 0.01000 0.01000 0.00130
37 594,724.92 63,135.98 757,631.76 4.9710 0.01000 0.01000 0.00130
38 675,006.67 67,790.77 813,489.24 5.7000 0.01000 0.01000 0.00130
39 592,663.68 62,319.15 747,829.80 5.0830 0.01000 0.01000 0.00130
40 598,924.44 62,379.00 748,548.00 5.2000 0.01000 0.01000 0.00130
41 610,036.67 62,338.01 748,056.12 5.4500 0.00000 0.01000 0.00130 0.05000
42 88,510.67 1,062,128.04 5.4610 0.00000 0.01000 0.00130 0.10000
43 634,740.07 63,455.57 761,466.84 5.7700 0.01000 0.01000 0.00130
44 577,065.00 59,771.86 717,262.32 5.2700 0.01000 0.01000 0.00130
45 591,112.94 59,632.73 715,592.70 5.6330 0.01000 0.01000 0.00130
45.01
45.02
46 549,201.84 56,775.91 681,310.87 5.2950 0.01000 0.01000 0.00130
47 57,853.47 694,241.64 5.6250 0.01000 0.01000 0.00130
48 56,810.83 681,729.96 5.4600 0.01000 0.01000 0.00130
49 557,334.72 5.7500 0.01000 0.01000 0.00130
50 60,167.62 722,011.44 5.8200 0.01000 0.01000 0.00130
51 60,484.80 725,817.60 5.8750 0.01000 0.01000 0.00130
52 499,401.11 51,848.94 622,187.28 5.2400 0.01000 0.01000 0.00130
53 521,251.43 52,813.01 633,756.12 5.5700 0.01000 0.01000 0.00130
54 501,208.88 51,462.60 617,551.25 5.3850 0.01000 0.01000 0.00130
55 496,298.61 50,533.22 606,398.64 5.5000 0.01000 0.01000 0.00130
56 52,087.96 625,055.52 5.6250 0.01000 0.01000 0.00130
57 47,820.37 573,844.44 5.8000 0.01000 0.01000 0.00130
58 43,299.38 519,592.56 5.2400 0.01000 0.01000 0.00130
59 400,739.58 41,508.23 498,098.76 5.2700 0.01000 0.01000 0.00130
60 45,761.42 549,137.04 5.4340 0.01000 0.01000 0.00130
60.01
60.02
60.03
60.04
60.05
61 407,072.54 45,171.76 542,061.12 5.4110 0.00000 0.01000 0.00130 0.10000
62 412,257.36 41,769.77 501,237.24 5.5700 0.01000 0.01000 0.00130
63 403,122.22 40,759.61 489,115.32 5.6000 0.01000 0.01000 0.00130
64 388,131.88 39,720.05 476,640.60 5.4300 0.00000 0.01000 0.00130 0.06000
65 42,253.63 507,043.56 6.0100 0.01000 0.01000 0.00130
66 38,741.02 464,892.24 5.2700 0.00000 0.01000 0.00130 0.08000
67 349,031.25 36,649.11 439,789.32 5.1000 0.01000 0.01000 0.00130
68 37,123.58 445,482.96 5.4700 0.00000 0.01000 0.00130 0.05000
69 36,563.32 438,759.84 5.9900 0.01000 0.01000 0.00130
70 35,586.92 427,043.04 5.7925 0.01000 0.01000 0.00130
71 35,014.37 420,172.44 5.7500 0.01000 0.01000 0.00130
72 304,166.67 32,209.30 386,511.60 5.0000 0.01000 0.01000 0.00130
73 327,397.40 34,417.83 413,013.96 5.4500 0.01000 0.01000 0.00130
74 33,336.60 400,039.20 5.6900 0.00000 0.01000 0.00130 0.02000
75 323,430.60 32,271.42 387,257.04 5.8000 0.00000 0.01000 0.00130 0.08000
76 290,897.40 29,693.74 356,324.88 5.4650 0.00000 0.01000 0.00130 0.08000
77 32,682.12 392,185.44 5.7400 0.00000 0.01000 0.00130 0.08000
78 28,255.55 339,066.60 5.7820 0.00000 0.01000 0.00130 0.10000
78.01
78.02
79 273,506.67 27,616.36 331,396.32 5.6200 0.01000 0.01000 0.00130
80 31,250.02 375,000.24 6.1100 0.01000 0.01000 0.00130
81 26,756.75 321,081.00 5.7200 0.01000 0.01000 0.00130
82 245,271.89 24,977.20 299,726.40 5.4980 0.01000 0.01000 0.00130
83 26,686.83 320,241.96 5.4900 0.01000 0.01000 0.00130
84 226,223.96 23,468.66 281,623.92 5.2500 0.01000 0.01000 0.00130
85 220,622.22 22,561.21 270,734.52 5.4400 0.01000 0.01000 0.00130
86 27,158.45 325,901.35 6.5600 0.01000 0.01000 0.00130
87 212,916.67 22,088.15 265,057.80 5.2500 0.01000 0.01000 0.00130
88 22,611.28 271,335.36 5.4600 0.00000 0.01000 0.00130 0.06000
89 22,303.91 267,646.92 5.4500 0.01000 0.01000 0.00130
90 19,136.59 229,639.08 5.2900 0.01000 0.01000 0.00130
91 36,829.14 441,949.68 5.1400 0.01000 0.01000 0.00130
92 19,296.62 231,559.44 5.4300 0.01000 0.01000 0.00130
93 190,976.11 19,390.24 232,682.88 5.5400 0.01000 0.01000 0.00130
94 20,253.75 243,045.00 5.9400 0.00000 0.01000 0.00130 0.10000
95 19,732.16 236,785.92 5.9750 0.01000 0.01000 0.00130
96 19,516.75 234,201.00 6.0150 0.01000 0.01000 0.00130
96.01
96.02
96.03
97 18,390.71 220,688.52 5.6100 0.01000 0.01000 0.00130
98 18,219.47 218,633.64 5.5250 0.01000 0.01000 0.00130
99 170,667.92 17,465.55 209,586.60 5.4300 0.01000 0.01000 0.00130
100 169,725.00 17,184.55 206,214.60 5.5800 0.00000 0.01000 0.00130 0.10000
101 17,317.07 207,804.84 5.6500 0.01000 0.01000 0.00130
102 16,306.93 195,683.16 5.1100 0.00000 0.01000 0.00130 0.02000
103 17,743.68 212,924.16 6.0300 0.01000 0.01000 0.00130
104 15,735.19 188,822.28 5.5700 0.00000 0.01000 0.00130 0.06000
105 15,186.62 182,239.44 5.4150 0.01000 0.01000 0.00130
106 16,142.08 193,704.96 6.2200 0.01000 0.01000 0.00130
107 15,057.47 180,689.64 5.6800 0.01000 0.01000 0.00130
108 15,261.67 183,140.04 5.8750 0.01000 0.01000 0.00130
109 15,118.83 181,425.96 5.8600 0.00000 0.01000 0.00130 0.12500
110 137,194.38 15,007.70 180,092.40 5.5800 0.01000 0.01000 0.00130
111 14,557.63 174,691.56 5.5900 0.01000 0.01000 0.00130
112 127,978.13 12,930.97 155,171.64 5.6100 0.01000 0.01000 0.00130
113 113,484.58 11,920.87 143,050.44 5.4600 0.01000 0.01000 0.00130
114 12,527.65 150,331.80 5.4500 0.01000 0.01000 0.00130
115 119,050.33 12,826.92 153,923.04 5.7700 0.01000 0.01000 0.00130
116 11,608.01 139,296.12 5.7000 0.00000 0.01000 0.00130 0.06000
117 11,684.17 140,210.04 5.7600 0.00000 0.01000 0.00130 0.05000
118 11,557.36 138,688.32 5.6600 0.01000 0.01000 0.00130
119 11,393.25 136,719.00 5.8800 0.00000 0.01000 0.00130 0.06000
120 11,257.44 135,089.28 5.8900 0.01000 0.01000 0.00130
121 110,189.44 11,051.70 132,620.40 5.7200 0.01000 0.01000 0.00130
122 10,894.39 130,732.68 5.7100 0.00000 0.01000 0.00130 0.06000
123 10,569.19 126,830.28 5.6800 0.01000 0.01000 0.00130
124 10,305.37 123,664.44 5.5000 0.01000 0.01000 0.00130
125 9,615.82 115,389.84 5.6000 0.01000 0.01000 0.00130
126 9,601.87 115,222.44 5.7800 0.01000 0.01000 0.00130
127 9,034.49 108,413.88 5.4500 0.01000 0.01000 0.00130
128 9,195.36 110,344.32 5.6100 0.00000 0.01000 0.00130 0.06000
129 8,591.92 103,103.04 5.4300 0.01000 0.01000 0.00130
130 8,516.84 102,202.08 5.5000 0.01000 0.01000 0.00130
131 8,459.08 101,508.96 5.5600 0.01000 0.01000 0.00130
132 8,278.49 99,341.88 5.5500 0.00000 0.01000 0.00130 0.06000
133 7,267.54 87,210.48 5.1900 0.00000 0.01000 0.00130 0.05000
134 7,802.52 93,630.24 6.0100 0.01000 0.01000 0.00130
135 7,430.27 89,163.24 5.5600 0.01000 0.01000 0.00130
136 7,209.58 86,514.96 5.5700 0.00000 0.01000 0.00130 0.06000
137 10,113.58 121,362.96 5.6600 0.01000 0.01000 0.00130
138 6,517.46 78,209.52 5.8900 0.01000 0.01000 0.00130
139 6,531.54 78,378.48 5.9100 0.01000 0.01000 0.00130
140 6,251.03 75,012.36 5.7600 0.01000 0.01000 0.00130
141 6,333.43 76,001.16 5.8200 0.00000 0.01000 0.00130 0.06000
142 8,498.11 101,977.32 6.1100 0.01000 0.01000 0.00130
Net
Mortgage Remaining
Loan Admin. Interest Accrual Remaining Maturity/ARD Amort Amort Title ARD
# Fee Rate Type Term Term Date Term Term Type (Y/N)
1 0.03130 4.61830 Actual/360 84 82 10/1/2012 360 358 Fee/Leasehold No
2 0.02130 5.28280 Actual/360 120 120 12/8/2015 360 360 Fee/Leasehold No
3 0.02130 5.76110 Actual/360 60 59 11/8/2010 360 360 Fee No
3.01 Fee
3.02 Fee
4 0.02130 5.37070 Actual/360 120 119 11/8/2015 360 360 Fee/Leasehold No
4.01 Fee
4.02 Fee
4.03 Fee/Leasehold
4.04 Fee
4.05 Fee
4.06 Fee
4.07 Fee
4.08 Fee
5 0.02130 5.26450 Actual/360 120 120 12/8/2015 360 360 Fee No
6 0.02130 5.28370 Actual/360 120 120 12/1/2015 360 360 Fee No
7 0.02130 5.26370 Actual/360 120 120 12/1/2015 360 360 Fee No
8 0.02130 5.78470 Actual/360 120 120 12/1/2015 360 360 Fee No
9 0.02130 5.29620 Actual/360 120 115 7/1/2015 300 300 Fee No
9.01 Fee
9.02 Fee
9.03 Fee
9.04 Fee
9.05 Fee
9.06 Fee
9.07 Fee
10 0.02130 5.35370 Actual/360 120 120 12/1/2015 360 360 Fee No
11 0.11130 5.26870 Actual/360 120 119 11/1/2015 324 324 Fee No
12 0.02130 5.81870 Actual/360 84 83 11/1/2012 360 360 Fee No
13 0.02130 5.01870 30/360 60 59 11/1/2010 0 0 Fee No
14 0.02130 4.91870 Actual/360 120 118 10/1/2015 360 360 Fee No
15 0.02130 5.33070 Actual/360 120 120 12/1/2015 360 360 Leasehold No
16 0.03130 5.24470 Actual/360 120 119 11/1/2015 0 0 Fee No
17 0.06130 5.63170 Actual/360 120 120 12/1/2015 360 360 Fee/Leasehold No
18 0.02130 5.67870 Actual/360 120 120 12/1/2015 360 360 Fee No
19 0.02130 5.76870 Actual/360 121 121 1/1/2016 360 360 Fee No
20 0.02130 5.76870 Actual/360 121 121 1/1/2016 360 360 Fee No
21 0.02130 5.25370 Actual/360 120 120 12/1/2015 360 360 Fee No
22 0.02130 5.26570 Actual/360 120 120 12/1/2015 360 360 Leasehold No
23 0.02130 5.25370 Actual/360 120 120 12/1/2015 360 360 Fee No
24 0.02130 6.53870 Actual/360 121 121 1/1/2016 300 300 Fee No
25 0.02130 5.28370 Actual/360 120 120 12/1/2015 360 360 Fee No
26 0.02130 5.35370 Actual/360 120 118 10/1/2015 360 360 Fee No
27 0.02130 5.71870 Actual/360 120 117 9/1/2015 360 357 Fee No
27.01 Fee
27.02 Fee
27.03 Fee
27.04 Fee
27.05 Fee
27.06 Fee
27.07 Fee
28 0.02130 5.33870 Actual/360 60 56 8/8/2010 360 360 Fee No
29 0.02130 5.71870 Actual/360 120 117 9/1/2015 360 357 Fee No
29.01 Fee
29.02 Fee
29.03 Fee
29.04 Fee
29.05 Fee
29.06 Fee
29.07 Fee
30 0.02130 5.02870 Actual/360 120 119 11/8/2015 360 360 Fee No
31 0.02130 5.52870 Actual/360 120 118 10/8/2015 360 360 Fee No
32 0.02130 5.25370 Actual/360 120 120 12/1/2015 360 360 Fee No
33 0.02130 5.35070 Actual/360 120 119 11/8/2015 360 359 Fee No
34 0.02130 5.10870 Actual/360 120 119 11/1/2015 360 360 Fee No
35 0.02130 5.18870 Actual/360 120 111 3/1/2015 360 351 Fee No
36 0.02130 5.55870 Actual/360 120 119 11/1/2015 360 360 Fee No
37 0.02130 4.94970 Actual/360 120 119 11/1/2015 360 360 Fee No
38 0.02130 5.67870 Actual/360 120 120 12/1/2015 360 360 Fee No
39 0.02130 5.06170 Actual/360 120 119 11/1/2015 360 360 Fee No
40 0.02130 5.17870 Actual/360 120 120 12/1/2015 360 360 Fee No
41 0.06130 5.38870 Actual/360 120 115 7/1/2015 360 360 Fee No
42 0.11130 5.34970 Actual/360 120 120 12/1/2015 180 180 Fee No
43 0.02130 5.74870 Actual/360 120 120 12/1/2015 360 360 Fee No
44 0.02130 5.24870 Actual/360 120 120 12/1/2015 360 360 Fee No
45 0.02130 5.61170 Actual/360 84 82 10/1/2012 360 360 Fee No
45.01 Fee
45.02 Fee
46 0.02130 5.27370 Actual/360 120 120 12/1/2015 360 360 Fee No
47 0.02130 5.60370 Actual/360 120 120 12/1/2015 360 360 Fee No
48 0.02130 5.43870 Actual/360 123 122 1/31/2016 360 359 Leasehold Yes
49 0.02130 5.72870 Actual/360 120 119 11/1/2015 0 0 Fee No
50 0.02130 5.79870 Actual/360 120 120 12/1/2015 300 300 Fee No
51 0.02130 5.85370 Actual/360 120 118 10/1/2015 300 298 Fee No
52 0.02130 5.21870 Actual/360 120 120 12/1/2015 360 360 Fee No
53 0.02130 5.54870 Actual/360 120 120 12/1/2015 360 360 Fee No
54 0.02130 5.36370 Actual/360 120 120 12/1/2015 360 360 Fee No
55 0.02130 5.47870 Actual/360 84 82 10/1/2012 360 360 Fee No
56 0.02130 5.60370 Actual/360 120 119 11/1/2015 300 299 Fee No
57 0.02130 5.77870 Actual/360 120 120 12/1/2015 360 360 Fee No
58 0.02130 5.21870 Actual/360 120 117 9/8/2015 360 357 Fee No
59 0.02130 5.24870 Actual/360 120 119 11/8/2015 360 360 Fee No
60 0.02130 5.41270 Actual/360 120 120 12/1/2015 300 300 Fee No
60.01 Fee
60.02 Fee
60.03 Fee
60.04 Fee
60.05 Fee
61 0.11130 5.29970 Actual/360 120 120 12/1/2015 300 300 Fee No
62 0.02130 5.54870 Actual/360 120 120 12/1/2015 360 360 Fee No
63 0.02130 5.57870 Actual/360 120 120 12/1/2015 360 360 Fee No
64 0.07130 5.35870 Actual/360 120 120 12/1/2015 360 360 Fee No
65 0.02130 5.98870 Actual/360 120 119 11/1/2015 360 359 Fee No
66 0.09130 5.17870 Actual/360 120 118 10/1/2015 360 358 Fee No
67 0.02130 5.07870 Actual/360 120 119 11/1/2015 360 360 Fee No
68 0.06130 5.40870 Actual/360 120 119 11/1/2015 360 359 Fee No
69 0.02130 5.96870 Actual/360 120 120 12/1/2015 360 360 Fee No
70 0.02130 5.77120 Actual/360 120 120 12/1/2015 360 360 Fee No
71 0.02130 5.72870 Actual/360 120 120 12/1/2015 360 360 Fee No
72 0.02130 4.97870 Actual/360 120 120 12/1/2015 360 360 Fee No
73 0.02130 5.42870 Actual/360 120 120 12/1/2015 336 336 Fee No
74 0.03130 5.65870 Actual/360 60 58 10/1/2010 360 358 Fee No
75 0.09130 5.70870 Actual/360 120 119 11/1/2015 360 360 Fee No
76 0.09130 5.37370 Actual/360 120 114 6/1/2015 360 360 Fee No
77 0.09130 5.64870 Actual/360 120 119 11/1/2015 300 299 Fee No
78 0.11130 5.67070 Actual/360 120 119 11/1/2015 360 359 Fee No
78.01 Fee
78.02 Fee
79 0.02130 5.59870 Actual/360 120 119 11/1/2015 360 360 Fee No
80 0.02130 6.08870 Actual/360 84 83 11/1/2012 300 299 Fee No
81 0.02130 5.69870 Actual/360 120 120 12/1/2015 360 360 Fee No
82 0.02130 5.47670 Actual/360 120 120 12/1/2015 360 360 Fee No
83 0.02130 5.46870 Actual/360 120 120 12/1/2015 300 300 Fee No
84 0.02130 5.22870 Actual/360 120 119 11/1/2015 360 360 Fee No
85 0.02130 5.41870 Actual/360 120 119 11/1/2015 360 360 Fee No
86 0.02130 6.53870 Actual/360 121 121 1/1/2016 300 300 Fee No
87 0.02130 5.22870 Actual/360 120 120 12/1/2015 360 360 Fee No
88 0.07130 5.38870 Actual/360 120 118 10/1/2015 360 358 Fee No
89 0.02130 5.42870 Actual/360 120 119 11/1/2015 360 359 Fee No
90 0.02130 5.26870 Actual/360 120 115 7/1/2015 360 355 Fee No
91 0.02130 5.11870 Actual/360 120 119 11/1/2015 120 119 Fee/Leasehold No
92 0.02130 5.40870 Actual/360 120 120 12/1/2015 360 360 Fee No
93 0.02130 5.51870 Actual/360 120 119 11/1/2015 360 360 Fee No
94 0.11130 5.82870 Actual/360 120 119 11/1/2015 360 359 Fee No
95 0.02130 5.95370 Actual/360 120 120 12/1/2015 360 360 Fee No
96 0.02130 5.99370 Actual/360 120 119 11/1/2015 360 359 Fee No
96.01 Fee
96.02 Fee
96.03 Fee
97 0.02130 5.58870 Actual/360 120 120 12/1/2015 360 360 Fee No
98 0.02130 5.50370 Actual/360 120 118 10/1/2015 360 358 Fee No
99 0.02130 5.40870 Actual/360 120 120 12/1/2015 360 360 Fee No
100 0.11130 5.46870 Actual/360 120 119 11/1/2015 360 360 Fee No
101 0.02130 5.62870 Actual/360 120 119 11/1/2015 360 359 Fee No
102 0.03130 5.07870 Actual/360 120 119 11/1/2015 360 359 Fee No
103 0.02130 6.00870 Actual/360 120 120 12/1/2015 360 360 Fee No
104 0.07130 5.49870 Actual/360 120 119 11/1/2015 360 359 Fee No
105 0.02130 5.39370 Actual/360 120 119 11/1/2015 360 359 Fee No
106 0.02130 6.19870 Actual/360 120 120 12/1/2015 360 360 Fee No
107 0.02130 5.65870 Actual/360 120 119 11/1/2015 360 359 Fee No
108 0.02130 5.85370 Actual/360 120 119 11/1/2015 360 359 Fee No
109 0.13630 5.72370 Actual/360 120 119 11/1/2015 360 359 Fee No
110 0.02130 5.55870 Actual/360 120 119 11/1/2015 300 300 Fee No
111 0.02130 5.56870 Actual/360 120 119 11/1/2015 300 299 Fee No
112 0.02130 5.58870 Actual/360 84 83 11/1/2012 360 360 Fee No
113 0.02130 5.43870 Actual/360 120 117 9/1/2015 336 336 Fee No
114 0.02130 5.42870 Actual/360 120 119 11/1/2015 300 299 Fee No
115 0.02130 5.74870 Actual/360 120 119 11/1/2015 300 300 Fee No
116 0.07130 5.62870 Actual/360 120 119 11/1/2015 360 359 Fee No
117 0.06130 5.69870 Actual/360 120 118 10/1/2015 360 358 Fee No
118 0.02130 5.63870 Actual/360 120 118 10/1/2015 360 358 Fee No
119 0.07130 5.80870 Actual/360 120 119 11/1/2015 360 359 Fee No
120 0.02130 5.86870 Actual/360 120 120 12/1/2015 360 360 Fee No
121 0.02130 5.69870 Actual/360 84 82 10/1/2012 360 360 Fee No
122 0.07130 5.63870 Actual/360 120 119 11/1/2015 360 359 Fee No
123 0.02130 5.65870 Actual/360 120 118 10/1/2015 360 358 Fee No
124 0.02130 5.47870 Actual/360 120 119 11/1/2015 360 359 Fee No
125 0.02130 5.57870 Actual/360 120 119 11/1/2015 360 359 Fee No
126 0.02130 5.75870 Actual/360 120 119 11/1/2015 360 359 Fee No
127 0.02130 5.42870 Actual/360 120 119 11/1/2015 360 359 Fee No
128 0.07130 5.53870 Actual/360 120 118 10/1/2015 360 358 Fee No
129 0.02130 5.40870 Actual/360 120 119 11/1/2015 360 359 Fee No
130 0.02130 5.47870 Actual/360 120 119 11/1/2015 360 359 Fee No
131 0.02130 5.53870 Actual/360 120 118 10/1/2015 360 358 Fee No
132 0.07130 5.47870 Actual/360 120 119 11/1/2015 360 359 Fee No
133 0.06130 5.12870 Actual/360 120 119 11/1/2015 360 359 Fee No
134 0.02130 5.98870 Actual/360 120 120 12/1/2015 360 360 Fee No
135 0.02130 5.53870 Actual/360 120 118 10/1/2015 360 358 Fee No
136 0.07130 5.49870 Actual/360 120 119 11/1/2015 360 359 Fee No
137 0.02130 5.63870 Actual/360 120 119 11/1/2015 180 179 Fee No
138 0.02130 5.86870 Actual/360 120 120 12/1/2015 360 360 Fee No
139 0.02130 5.88870 Actual/360 120 120 12/1/2015 360 360 Fee No
140 0.02130 5.73870 Actual/360 120 119 11/1/2015 360 359 Fee No
141 0.07130 5.74870 Actual/360 120 119 11/1/2015 300 299 Fee No
142 0.02130 6.08870 Actual/360 180 179 11/1/2020 180 179 Fee No
ARD
Step Environmental Environmental
Loan Up Report Insurance
# (%) Type (Y/N) Cross-Defaulted Cross-Collateralized
1 Phase I Xx
0 Xxxxx X Xx
0 Xxxxx X No
3.01 Phase I Xx
0.00 Xxxxx X Xx
0 Xxxxx X No
4.01 Phase I No
4.02 Phase I No
4.03 Phase I No
4.04 Phase I No
4.05 Phase I No
4.06 Phase I No
4.07 Phase I No
4.08 Phase I Xx
0 Xxxxx X Xx
0 Xxxxx X No
7 Phase I Xx
0 Xxxxx X Xx
0 Xxxxx X No
9.01 Phase I No
9.02 Phase I No
9.03 Phase I No
9.04 Phase I No
9.05 Phase I No
9.06 Phase I No
9.07 Phase I Xx
00 Xxxxx X Xx
00 Xxxxx X No
12 Phase I Xx
00 Xxxxx X Xx
00 Xxxxx X Xx
00 Xxxxx X Xx
00 Xxxxx X Xx
00 Xxxxx X Xx
00 Xxxxx X No Yes Yes
19 Phase I Xx
00 Xxxxx X Xx
00 Xxxxx X No
22 Phase I Xx
00 Xxxxx X Xx
00 Xxxxx X No Yes Yes
25 Phase I Xx
00 Xxxxx X Xx
00 Xxxxx X No
27.01 Phase I No
27.02 Phase I No
27.03 Phase I No
27.04 Phase I No
27.05 Phase I No
27.06 Phase I No
27.07 Phase I Xx
00 Xxxxx X Xx
00 Xxxxx X No
29.01 Phase I No
29.02 Phase I No
29.03 Phase I No
29.04 Phase I No
29.05 Phase I No
29.06 Phase I No
29.07 Phase I Xx
00 Xxxxx X Xx
00 Xxxxx X Xx
00 Xxxxx X Xx
00 Xxxxx X No
34 Phase I Xx
00 Xxxxx X Xx
00 Xxxxx X Xx
00 Xxxxx X Xx
00 Xxxxx X No Yes Yes
39 Phase I Xx
00 Xxxxx X Xx
00 Xxxxx X No
42 Phase I Xx
00 Xxxxx X Xx
00 Xxxxx X No
45 Phase I No
45.01 Phase I No
45.02 Phase I Xx
00 Xxxxx X Xx
00 Xxxxx X No
48 2.0% plus the interest rate Phase I No
49 Phase I Xx
00 Xxxxx X Xx
00 Xxxxx X No
52 Phase I Xx
00 Xxxxx X Xx
00 Xxxxx X Xx
00 Xxxxx X Xx
00 Xxxxx X No
57 Phase I Xx
00 Xxxxx X Xx
00 Xxxxx X No
60 Phase I No
60.01 Phase I No
60.02 Phase I No
60.03 Phase I No
60.04 Phase I No
60.05 Phase I Xx
00 Xxxxx X Xx
00 Xxxxx X No
63 Phase I Xx
00 Xxxxx X Xx
00 Xxxxx X No
66 Phase I Xx
00 Xxxxx X Xx
00 Xxxxx X Xx
00 Xxxxx X Xx
00 Xxxxx X Xx
00 Xxxxx X Xx
00 Xxxxx X Xx
00 Xxxxx X Xx
00 Xxxxx X Xx
00 Xxxxx X Xx
00 Xxxxx X Xx
00 Xxxxx X Xx
00 Xxxxx X Various
78.01 Phase I No
78.02 Phase I Yes
79 Phase I Xx
00 Xxxxx X Xx
00 Xxxxx X No
82 Phase I Xx
00 Xxxxx X Xx
00 Xxxxx X Xx
00 Xxxxx X Xx
00 Xxxxx X No Yes Yes
87 Phase I Xx
00 Xxxxx X Xx
00 Xxxxx X No
90 Phase I Xx
00 Xxxxx X Xx
00 Xxxxx X No
93 Phase I Xx
00 Xxxxx X Xx
00 Xxxxx X No
96 Phase I No
96.01 Phase I No
96.02 Phase I No
96.03 Phase I No
97 Phase I Xx
00 Xxxxx X Xx
00 Xxxxx X No
100 Phase I Xx
000 Xxxxx X Xx
000 Xxxxx X Xx
000 Xxxxx X Xx
000 Xxxxx X No
105 Phase I Xx
000 Xxxxx X Xx
000 Xxxxx X Xx
000 Xxxxx X Xx
000 Xxxxx X Xx
000 Xxxxx X Xx
000 Xxxxx X Xx
000 Xxxxx X Xx
000 Xxxxx X Xx
000 Xxxxx X Xx
000 Xxxxx X Xx
000 Xxxxx X Xx
000 Xxxxx X Xx
000 Xxxxx X Xx
000 Xxxxx X Xx
000 Xxxxx X Xx
000 Xxxxx X No
122 Phase I Xx
000 Xxxxx X Xx
000 Xxxxx X Xx
000 Xxxxx X Xx
000 Xxxxx X Xx
000 Xxxxx X Xx
000 Xxxxx X Xx
000 Xxxxx X Xx
000 Xxxxx X Xx
000 Xxxxx X Xx
000 Xxxxx X No
133 Phase I Xx
000 Xxxxx X Xx
000 Xxxxx X Xx
000 Xxxxx X Xx
000 Xxxxx X Xx
000 Xxxxx X Xx
000 Xxxxx X Xx
000 Xxxxx X Xx
000 Xxxxx X No
142 Phase I No
Letter Upfront Upfront Upfront Upfront
Loan Defeasance of Lockbox Holdback Eng. CapEx Envir. TI/LC
# Allowed Credit In-place Amt Reserve Reserves Reserve Reserve
1 Yes No Yes
2 Yes No Yes 3,014,182.00
3 Yes No Yes 750,000.00
3.01
3.02
4 Yes No No
4.01
4.02
4.03
4.04
4.05
4.06
4.07
4.08
5 Yes No Yes 1,110,000.00
6 Yes No No
7 Yes No No
8 Yes No Yes 28,125.00 400,000.00
9 Yes No Yes 19,862.50
9.01
9.02
9.03
9.04
9.05
9.06
9.07
10 Yes No No
11 Yes No No
12 Yes No No
13 No No No
14 Yes No Yes
15 Yes No No 13,750.00
16 Yes No No
17 Yes No No 46,875.00
18 Yes No Yes
19 Yes No No 125,053.00
20 Yes No No 77,820.00
21 Yes No No
22 Yes No No
23 Yes No No
24 Yes No No
25 Yes No No
26 Yes No No
27 No No No
27.01
27.02
27.03
27.04
27.05
27.06
27.07
28 Yes No No
29 No No No
29.01
29.02
29.03
29.04
29.05
29.06
29.07
30 Yes No Yes
31 Yes No No
32 Yes No No
33 Yes No Yes 26,250.00
34 Yes No No 13,125.00
35 Yes No No
36 Yes No No
37 Yes No No 87,050.00
38 Yes No Yes
39 Yes No No 2,035,000.00 13,161.00
40 Yes No No
41 Yes No No
42 Yes No No
43 No No No
44 Yes Yes No 50,000.00
45 Yes No Yes 100,000.00
45.01
45.02
46 Yes No No 10,000.00
47 Yes No No
48 Yes No Yes
49 Yes No Yes 50,000.00
50 Yes No No
51 Yes No Yes
52 Yes Yes No
53 Yes No No
54 Yes No No 25,000.00
55 Yes No Yes
56 Yes No Yes
57 Yes No Yes
58 Yes No Yes
59 Yes No Yes 28,750.00
60 Yes No No
60.01
60.02
60.03
60.04
60.05
61 Yes No Yes
62 Yes No No
63 Yes No No
64 Yes No No
65 Yes No No
66 Yes No No
67 Yes No No
68 Yes No No
69 Yes No No 140,612.50 221,250.00
70 Yes No No
71 Yes No No
72 Yes No No
73 Yes No No
74 Yes No No
75 Yes No No 64,660.00
76 Yes No No
77 Yes No No
78 Yes No No 15,761.00
78.01
78.02
79 Yes No No
80 Yes No No
81 Yes No No 100,000.00
82 Yes No No 163,500.00
83 Yes No No
84 Yes No No
85 Yes No No 50,000.00
86 Yes No No
87 Yes No No 17,125.00
88 Yes No No 17,500.00
89 Yes No No
90 Yes No No
91 Yes No No
92 Yes No No
93 Yes No No
94 Yes No No
95 Yes No No
96 Yes No No 21,563.00
96.01
96.02
96.03
97 Yes No No 50,000.00
98 Yes No No 9,125.00
99 Yes No No
100 Yes No No
101 Yes No No
102 Yes No No 9,375.00 75,000.00
103 Yes No No 15,000.00
104 Yes No No 1,000.00
105 Yes Yes No
106 Yes No No 31,163.00
107 Yes No No 60,000.00
108 Yes No No 12,500.00
109 Yes No No 10,000.00
110 Yes No No 11,875.00
111 Yes No No 3,000.00
112 No No No
113 Yes No No 119,100.00
114 No No No
115 No No No
116 Yes No No
117 Yes No No
118 Yes No No
119 No No No
120 Yes No No
121 Yes No No
122 Yes No No 20,000.00
123 Yes No No
124 Yes No No
125 Yes No No
126 Yes No No
127 Yes No No
128 Yes No No
129 Yes No No
130 Yes No No
131 Yes No No
132 Yes No No
133 Yes No No
134 Yes No No
135 Yes No No
136 Yes No No
137 Yes No No 5,750.00
138 Yes No No
139 Yes No No
140 Yes No No
141 Yes No No 28,339.25
142 Yes No No
Upfront
RE Upfront Upfront
Loan Tax Insurance Other
# Reserve Reserve Reserve
1
2 235,017.93 55,707.50 150,409.21
3 1,183,830.00 69,575.00 1,229,732.00
3.01
3.02
4 1,000,449.43
4.01
4.02
4.03
4.04
4.05
4.06
4.07
4.08
5 117,039.59 20,631.50
6
7
8 17,117.10 507,322.00
9
9.01
9.02
9.03
9.04
9.05
9.06
9.07
10
11 27,499.39 93,668.91
12 187,024.03
13
14
15 48,026.66 525,000.00
16 88,041.48 25,623.00
17 166,602.00 37,100.70
18 31,941.42 2,036.41
19 28,309.68
20 68,693.23 26,049.05
21
22 51,829.37
23
24 11,233.66 11,887.72
25
26 16,267.08
27 21,370.44
27.01
27.02
27.03
27.04
27.05
27.06
27.07
28 55,000.00
29 20,570.16
29.01
29.02
29.03
29.04
29.05
29.06
29.07
30 52,612.09 6,854.00
31 75,996.71 2,545,287.50
32
33 25,904.71
34 79,016.52 3,812.81 320,000.00
35 214,746.91 38,754.56
36 15,110.33 4,797.00
37 39,382.61
38 27,160.07 1,600.04 10,000.00
39 21,855.38
40 33,877.50 1,593.02
41 139,438.91 21,145.28 10,000.00
42 33,520.28
43 79,551.04
44 22,712.04
45 209,727.02 18,795.40
45.01
45.02
46
47 39,745.22 59,976.89
48 13,684.52 23,467.71
49 41,124.00
50 70,133.84 7,664.51
51 245,483.85 53,731.31 11,111.00
52
53 26,041.05
54
55
56 34,050.14 40,948.69
57 113,522.57 34,459.19
58 61,000.00 5,121.67
59 5,695.50 1,958.00
60 33,019.43 15,641.08
60.01
60.02
60.03
60.04
60.05
61 14,446.95 498,726.00
62
63 1,064.33 5,667.31
64 25,022.65 2,773.68
65 12,530.46 27,300.00
66 4,798.91
67 63,811.40 3,528.37
68 10,486.63 3,045.47
69 15,662.40 23,185.30 15,825.00
70
71 34,882.71 10,698.48
72 25,142.52 4,505.28
73 9,903.60 19,357.87
74 14,019.44 1,144.00
75 5,575.79
76 43,345.12 2,652.17 300,000.00
77 19,752.68 55,462.00
78 114,625.00 8,291.85 225,000.00
78.01
78.02
79 26,504.12 1,863.33
80 4,886.61 2,850.64
81 9,872.04 1,670.24
82 17,291.40 4,105.94 300,000.00
83 8,119.68 10,895.04
84 25,000.00
85 29,972.00 9,106.40
86
87 19,613.37 1,823.69
88
89 2,126.48 481.87
90
91
92
93 3,891.46 7,431.84
94 11,996.40
95 34,227.30 3,380.00
96 30,890.95 6,160.70
96.01
96.02
96.03
97 7,224.37 7,120.88
98 22,674.19
99
100 44,720.00 8,953.62
101 32,323.24 1,557.25
102 6,289.83 3,192.89
103 27,777.23 6,938.88
104 1,715.65
105
106 7,317.65 2,599.13
107 4,583.80
108 2,912.46 2,536.04
109 7,796.91 837.37
110 6,530.66 4,946.24
111 2,815.78
112 2,793.10 3,565.99
113 28,516.98 3,415.21
114 886.95
115
116 2,039.10 562.81 4,217.81
117 1,596.75 10,467.71
118 20,966.56 1,336.57
119 2,669.15 896.57
120 1,116.82 503.36
121 2,663.41 1,122.33
122 2,999.59 854.53
123 7,379.75 3,434.34
124 6,500.00 9,744.97
125 10,626.28 2,042.21
126 10,111.86 2,205.32
127 37,128.43
128 1,977.55 1,771.12
129 1,248.07 4,187.99
130 30,639.42
131 2,500.16
132 1,479.73 656.07
133 8,263.39 1,512.68
134 1,484.15 1,904.64
135
136 807.73 10,200.00
137
138 703.64 256.36
139 1,965.71
140 9,161.30 1,286.48
141 1,534.77 3,848.00
142
Upfront
Loan Other
# Description
1
2 Ground Lease Escrow
3 Zurich Rollover Reserve, Rent Reserve for Tenant Rollover
3.01
3.02
4
4.01
4.02
4.03
4.04
4.05
4.06
4.07
4.08
5
6
7
8 New Tenant Reserve
9
9.01
9.02
9.03
9.04
9.05
9.06
9.07
10
11
12
13
14
15 Hayden Reserve
16
17
18
19
20
21
22
23
24
25
26
27
27.01
27.02
27.03
27.04
27.05
27.06
27.07
28
29
29.01
29.02
29.03
29.04
29.05
29.06
29.07
30
31 9-Months Debt Service, Earn-Out Reserve
32
33
34 Holdback Escrow
35
36
37
38 Estoppel Reserve
39
40
41 Final Survey Holdback
42
43
44
45
45.01
45.02
46
47
48
49
50
51 Seasonality Reserve
52
53
54
55
56
57
58
59
60
60.01
60.02
60.03
60.04
60.05
61 GSA Lease Reserver (270,000), Shelf Angle Repair Reserve (114,000); Xxxxxxx and Xxxxxxx Tenant Improvement Reserve ($114,726)
62
63
64
65
66
67
68
69 Val's 2 months Rent Reserve
70
71
72
73
74
75
76 Renovations Improvement
77 Ground Lease Escrow
78 Vista Ridge Chiropractor ($200,000); Bimbo Bakery ($$25,000)
78.01
78.02
79
80
81
82 Fantastic Sam's Reserve
83
84 Estoppel Holdback
85
86
87
88
89
90
91
92
93
94
95
96
96.01
96.02
96.03
97
98
99
100
101
102
103
104
105
106
107
108
109
110
111
112
113
114
115
116 Economic Earnout
117
118
119
120
121
122
123
124
125
126
127
128
129
130
131
132
133
134
135
136 Holdback Escrow
137
138
139
140
141
142
Monthly
Monthly Monthly Monthly RE Monthly Monthly Other
Loan Capex Envir. TI/LC Tax Insurance Other Month
# Reserve Reserve Reserve Reserve Reserve Reserve Description
1
2 16,726.67 30,343.33 78,339.31 27,853.75
3 6,599.38 89,092.00 131,536.67 6,087.81 41,667.00 Zurich Rollover Reserve
3.01
3.02
4 83,370.79
4.01
4.02
4.03
4.04
4.05
4.06
4.07
4.08
5 6,737.83 11,612.08 29,259.90 10,315.75
6
7
8 2,392.00 15,466.98 5,705.70
9
9.01
9.02
9.03
9.04
9.05
9.06
9.07
10
11 11,325.00 27,499.39 8,515.36
12 5,719.33 9,049.83 62,341.34 6,980.91
13
14
15 24,013.33
16 22,010.37 5,124.60
17 3,896.00 23,333.00 19,436.90 6,183.45
18 1,635.92 4,089.92 15,970.71 2,036.41
19 4,833.33 7,077.42 4,307.59 10,000.00 Liquidity Reserve
20 3,416.67 17,173.31 3,721.29 10,000.00 Liquidity Reserve
21
22 936.00 1,667.00 12,957.34 5,843.78
23
24 5,614.17 3,962.57
25
26 3,183.33 16,267.08
27 2,841.67 24,419.64 2,374.49
27.01
27.02
27.03
27.04
27.05
27.06
27.07
28 27,938.40
29 2,481.92 13,616.82 2,285.57
29.01
29.02
29.03
29.04
29.05
29.06
29.07
30 4,083.00 17,537.00 3,427.00
31 456.47 1,141.17 15,083.33
32
33 15,740.00 12,953.00
34 1,410.50 4,788.08 15,803.30 1,906.41
35 4,708.00 19,522.45 6,459.09
36 1,277.00 6,132.67 15,110.33 2,398.50
37 1,967.00 2,522.00 7,876.52
38 1,516.55 7,674.33 13,580.04 1,600.04
39 1,710.00 4,290.00 10,927.69
40 1,335.50 6,681.50 16,938.75 1,593.02
41 5,250.00 19,919.84 2,643.16
42 20,806.73 1,615.69
43 4% of Gross Revenues 19,887.76
44 923.45 7,314.50 2,523.56
45 2,843.00 12,082.83 23,303.00 1,879.54
45.01
45.02
46
47 1,298.00 6,000.00 19,872.61 6,664.10
48 1,317.00 13,684.52 7,822.57
49 1,485.00 7,083.33 13,708.00 1,491.18
50 3,708.33 23,377.95 3,832.26
51 4% of Gross Revenues 20,456.99 6,716.41 11,111.00 Seasonality Reserve
52 2,875.00
53 1,091.50 8,680.35 6,250.00 Repair Reserve
54
55 1,434.16
56 4% of Gross Revenues 11,350.05 4,094.87
57 3,041.67 18,920.43 3,132.65
58 924.97 4,763.58 10,166.67 5,121.67 20,782.29 Cash Sweep Reserve
59 1,015.00 3,232.00 5,695.50 1,958.00
60 3,242.75 11,006.48 2,234.44
60.01
60.02
60.03
60.04
60.05
61 7,500.00 12,045.49 1,203.91
62 772.00 5,499.99 738.66
63 2,334.00 8,736.00 809.62
64 1,222.50 8,340.88 924.56
65 4,709.00 12,530.46 3,900.00
66 3,229.17 6,527.18 1,199.73
67 1,370.83 10,635.23 504.05
68 431.92 2,571.42 5,243.31 1,522.73
69 1,331.00 4,447.83 3,915.60 2,898.16
70 3,690.00 4,696.79 3,559.24
71 847.58 2,785.50 3,875.86 1,783.08
72 197.92 989.50 8,380.84 563.16
73 2,270.83 1,650.60 1,935.79
74 520.83 2,002.78 572.00
75 1,063.33 3,969.50 8,506.81 696.97
76 1,243.17 5,623.00 8,669.02 1,326.09
77 6,166.67 3,404.14 3,287.61
78 947.00 4,166.00 11,462.50 1,381.98
78.01
78.02
79 697.75 3,313.02 372.67
80 416.67 2,757.00 4,886.61 712.66
81 324.42 2,125.00 3,290.68 417.56
82 289.00 3,225.00 4,322.85 821.19
83 5,912.50 2,029.92 1,381.88
84
85 3,621.50 590.11
86
87 883.33 4,903.34 610.90
88
89 294.41 2,126.48 240.93
90
91 1,165.05 984.62
92
93 835.92 1,945.73 619.32
94 654.17 5,983.58 1,199.64
95 486.00 1,587.75 6,845.46 563.33
96 3,586.63 6,178.19 880.10
96.01
96.02
96.03
97 371.25 2,301.58 3,612.18 1,186.81
98 875.00 2,834.27 416.00
99
100 288.75 3,726.67 994.85
101 685.08 2,693.60 311.45
102 565.50 2,554.42 3,144.92 456.13
103 632.91 2,441.25 3,968.18 770.99
104 491.75 1,300.42 2,108.86 428.91
105
106 620.08 3,658.82 1,299.57
107 1,400.00 3,435.22 916.76
108 918.84 1,456.23 845.35
109 262.00 1,205.33 1,351.46 418.69
110 912.83 3,265.34 412.19
111 568.42 2,815.78 953.33
112 1,708.34 1,396.55 1,782.99
113 718.33 3,564.62 683.04
114 406.17 1,478.33 2,286.20 443.47
115 1,487.17
116 188.00 907.33 2,039.10 562.81
117 1,333.33 2,614.43 798.37
118 828.09 2,098.66 668.29
119 156.75 830.34 1,746.72 179.31
120 578.42 1,116.82 251.68
121 135.92 819.00 532.68 561.17
122 152.00 706.00 1,499.79 427.27
123 942.08 3,689.87 490.62
124 400.00 1,300.00 885.91
125 350.00 885.52 510.55
126 491.67 2,022.33 367.55
127 971.58 3,094.04 359.41
128 108.75 542.08 1,977.55 295.19
129 833.34 1,248.07 380.73
130 751.25 2,553.28 334.36
131 531.33 1,139.16 416.69
132 148.50 722.50 1,479.73 328.03
133 708.33 2,754.46 756.34
134 1,333.33 1,484.15 952.32
135
136 106.25 530.00 1,203.32 201.93
137
138 430.42 703.64 128.18
139 450.00 1,965.71 418.43
140 405.09 1,017.92 643.24
141 767.39 481.00
142
Unit
Loan Total of Grace Loan
# SF/Units Measure Period Group
1 660,671 SF 5 1
2 999,799 SF 0 1
3 792,177 SF 0 1
3.01 397,454 SF 1
3.02 394,723 SF 1
4 337,983 SF 0 1
4.01 57,584 SF 1
4.02 63,037 SF 1
4.03 38,674 SF 1
4.04 29,474 SF 1
4.05 50,812 SF 1
4.06 45,121 SF 1
4.07 30,057 SF 1
4.08 23,224 SF 1
5 404,266 SF 0 1
6 735 Pads 5 1
7 500 Pads 5 1
8 143,491 SF 5 1
9 697 Rooms 0 1
9.01 95 Rooms 1
9.02 95 Rooms 1
9.03 95 Rooms 1
9.04 95 Rooms 1
9.05 127 Rooms 1
9.06 95 Rooms 1
9.07 95 Rooms 1
10 595 Pads 5 1
11 455 Units 5 2
12 686,320 SF 5 1
13 244,575 SF 5 1
14 302,320 SF 5 1
15 89,636 SF 5 1
16 212 Units 5 1
17 233,769 SF 5 1
18 98,157 SF 5 1
19 232 Units 5 2
20 164 Units 5 2
21 491 Pads 5 2
22 74,846 SF 5 1
23 515 Pads 5 2
24 154 Rooms 5 1
25 265 Pads 5 1
26 191 Units 5 1
27 225,014 SF 5 1
27.01 97,923 SF 1
27.02 47,391 SF 1
27.03 16,800 SF 1
27.04 29,800 SF 1
27.05 17,200 SF 1
27.06 14,000 SF 1
27.07 1,900 SF 1
28 169 Rooms 0 1
29 196,353 SF 5 1
29.01 40,419 SF 1
29.02 55,134 SF 1
29.03 57,600 SF 1
29.04 16,000 SF 1
29.05 8,400 SF 1
29.06 14,000 SF 1
29.07 4,800 SF 1
30 196 Units 0 2
31 53,849 SF 0 1
32 306 Pads 5 2
33 166 Rooms 0 1
34 95,673 SF 5 1
35 226 Units 5 2
36 153,240 SF 5 1
37 60,529 SF 5 1
38 90,993 SF 5 1
39 78,921 SF 5 1
40 68,195 SF 5 1
41 252 Units 5 1
42 159,057 SF 5 1
43 208 Rooms 5 1
44 82,166 SF 5 1
45 170,581 SF 5 1
45.01 85,900 SF 1
45.02 84,681 SF 1
46 245 Pads 5 2
47 62,564 SF 5 1
48 105,358 SF 5 1
49 89,077 SF 5 1
50 176 Units 5 2
51 151 Rooms 5 1
52 138 Units 5 1
53 87,322 SF 5 1
54 353 Pads 5 1
55 106,854 SF 5 1
56 99 Rooms 5 1
57 146 Units 5 2
58 55,498 SF 0 1
59 79,685 SF 0 1
60 261,212 SF 5 1
60.01 65,775 SF 1
60.02 58,175 SF 1
60.03 65,391 SF 1
60.04 39,901 SF 1
60.05 31,970 SF 1
61 100,746 SF 5 1
62 55,054 SF 5 1
63 112 Units 5 2
64 96,510 SF 5 1
65 226 Units 5 2
66 155 Units 5 2
67 47 Units 5 1
68 34,554 SF 5 1
69 87,236 SF 5 1
70 177 Units 5 2
71 50,857 SF 5 1
72 15,832 SF 5 1
73 109 Units 5 1
74 125 Pads 5 2
75 53,009 SF 5 1
76 65,838 SF 5 1
77 80 Rooms 5 1
78 75,778 SF 5 1
78.01 42,257 SF 1
78.02 33,521 SF 1
79 55,820 SF 5 1
80 33,333 SF 5 1
81 23,635 SF 5 1
82 23,134 SF 5 1
83 86 Rooms 5 1
84 13,278 SF 5 1
85 25,573 SF 5 1
86 48,029 SF 5 1
87 216 Pads 5 2
88 14,550 SF 5 1
89 24,750 SF 5 1
90 14,820 SF 5 1
91 99,249 SF 5 1
92 14,820 SF 5 1
93 50,357 SF 5 1
94 157 Pads 5 2
95 38,883 SF 5 1
96 132,280 SF 5 1
96.01 50,400 SF 1
96.02 59,080 SF 1
96.03 22,800 SF 1
97 32,674 SF 5 1
98 210 Pads 5 2
99 6,500 SF 5 1
100 23,100 SF 5 1
101 54,015 SF 5 1
102 29,432 SF 5 1
103 35,329 SF 5 1
104 20,760 SF 5 1
105 50,805 SF 5 1
106 49,509 SF 5 1
107 48 Units 5 2
108 90,925 SF 5 1
109 20,963 SF 7 1
110 64,105 SF 5 1
111 51,358 SF 5 1
112 82 Units 5 2
113 28 Units 5 2
114 24,370 SF 5 1
115 18,627 SF 5 1
116 15,041 SF 5 1
117 64 Units 5 2
118 66,248 SF 5 1
119 12,540 SF 5 1
120 40,072 SF 5 1
121 10,875 SF 5 1
122 10,800 SF 5 1
123 69,693 SF 5 1
124 24 Units 5 2
125 84 Pads 5 2
126 118 Pads 5 2
127 77,725 SF 5 1
128 8,700 SF 5 1
129 40 Units 5 2
130 60,700 SF 5 1
131 42,500 SF 5 1
132 11,880 SF 5 1
133 34 Units 5 2
134 64 Units 5 2
135 61,172 SF 5 1
136 8,500 SF 5 1
137 10,918 SF 5 1
138 31,130 SF 5 1
139 30,050 SF 5 1
140 33,006 SF 5 1
141 57,684 SF 5 1
142 10,898 SF 5 1
EXHIBIT C
FORM OF CUSTODIAL CERTIFICATION
[Date]
Xxxxxxx Xxxxx Mortgage Investors, Inc.
4 World Financial Center
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
[LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000]
[Xxxxx Fargo Bank, N.A.
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479-0113]
Countrywide Commercial Real Estate Finance, Inc.
0000 Xxxx Xxxxxxx XX-000
Xxxxxxxxx, Xxxxxxxxxx 00000
Xxxxxxx Xxxxx Mortgage Lending, Inc.
4 World Financial Center
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
GMAC Commercial Mortgage Corporation
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
LNR Partners, Inc.
0000 Xxxxxxxxxx Xxx., Xxxxx 000
Xxxxx Xxxxx, Xxxxxxx 00000
Re: Xxxxxxx Xxxxx Mortgage Trust 2005-LC1,
Commercial Mortgage Pass-Through Certificates, Series 2005-LC1
Ladies and Gentlemen:
[Xxxxx Fargo Bank, N.A., as Trustee][LaSalle Bank National Association, as
Certificate Administrator], hereby certifies to the above referenced parties
that, with respect to each Mortgage Loan listed in the Mortgage Loan Schedule,
except as specifically identified in the schedule of exceptions annexed hereto,
(i) without regard to the proviso in the definition of "Mortgage File," all
documents specified in clauses (a)(i), (a)(ii), (a)(iv)(a), (a)(v) and (a)(vii)
or clause (b)(i), as applicable, of such definition, and to the extent provided
in the related Mortgage File and actually known by a Responsible Officer of the
Trustee or the Custodian to be required or to the extent listed on the Mortgage
Loan checklist, if any, provided by the related Mortgage Loan Seller pursuant to
the related Mortgage Loan Purchase Agreement, clauses (a)(iii), (a)(iv)(b),
(a)(iv)(c), (a)(vi), (a)(viii) and (a)(ix) through (a)(xii) or clause (b)(ii),
as applicable, of such definition, of the definition of "Mortgage File", are in
its possession, (ii) all documents delivered or caused to be delivered with
respect to a Mortgage Loan by the applicable Mortgage Loan Seller constituting
the related Mortgage File have been reviewed by it and appear regular on their
face, appear to be executed and appear to relate to such Mortgage Loan, and
(iii) based on such examination and only as to the foregoing documents, the
information set forth in the Mortgage Loan Schedule for such Mortgage Loan with
respect to the items specified in clauses (v) and (vi)(c) of the definition of
"Mortgage Loan Schedule" is correct.
None of the Trustee, the Certificate Administrator, the Master Servicer,
the Special Servicer or any Custodian is under any duty or obligation to
inspect, review or examine any of the documents, instruments, certificates or
other papers relating to the Mortgage Loans delivered to it to determine that
the same are valid, legal, effective, genuine, enforceable, in recordable form,
sufficient or appropriate for the represented purpose or that they are other
than what they purport to be on their face. Capitalized terms used herein and
not otherwise defined shall have the respective meanings assigned to them under
the Pooling and Servicing Agreement.
Respectfully,
[XXXXX FARGO BANK, N.A.]
[LASALLE BANK NATIONAL ASSOCIATION]
_________________________________________
Name:____________________________________
Title:___________________________________
EXHIBIT D-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
[Date]
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services, MLMT 2005-LC1
Re: Xxxxxxx Xxxxx Mortgage Trust 2005-LC1,
Commercial Mortgage Pass-Through Certificates, Series 2005-LC1
Ladies and Gentlemen:
In connection with the administration of the Mortgage Files held by you as
Trustee under a certain Pooling and Servicing Agreement dated as of December 1,
2005 (the "Pooling and Servicing Agreement"), by and among Xxxxxxx Xxxxx
Mortgage Investors, Inc., as Depositor, GMAC Commercial Mortgage Corporation, as
Master Servicer, LNR Partners, Inc., as Special Servicer, LaSalle Bank National
Association, as Certificate Administrator, and you, as Trustee, the undersigned
hereby requests a release of the Mortgage File (or the portion thereof specified
below) held by you with respect to the following described Mortgage Loan for the
reason indicated below.
Property Name:
Property Address:
Control No.:
The Mortgage File should be delivered to the following:
-----------------------------------------
-----------------------------------------
-----------------------------------------
Attn:____________________________________
Phone:___________________________________
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting file (or portion thereof):
_____ 1. Mortgage Loan paid in full.
The Master Servicer hereby certifies that all amounts received in
connection with the Mortgage Loan that are required to be credited
to the Collection Account pursuant to the Pooling and Servicing
Agreement have been or will be so credited.
_____ 2. Other. (Describe)
--------------------------------------------------------------------
--------------------------------------------------------------------
--------------------------------------------------------------------
--------------------------------------------------------------------
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan has been paid in full, in which case the Mortgage File (or such
portion thereof) will be retained by us permanently.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
GMAC COMMERCIAL MORTGAGE CORPORATION
as Master Servicer
By:_______________________________________________
Name___________________________________
Title:_________________________________
EXHIBIT D-2
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
[Date]
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services, MLMT 2005-LC1
Re: Xxxxxxx Xxxxx Mortgage Trust 2005-LC1,
Commercial Mortgage Pass-Through Certificates, Series 2005-LC1
Ladies and Gentlemen:
In connection with the administration of the Mortgage Files held by
you as Trustee under a certain Pooling and Servicing Agreement dated as of
December 1, 2005 (the "Pooling and Servicing Agreement"), by and among Xxxxxxx
Xxxxx Mortgage Investors, Inc., as Depositor, GMAC Commercial Mortgage
Corporation, as Master Servicer, LNR Partners, Inc., as Special Servicer,
LaSalle Bank National Association, as Certificate Administrator, and you, as
Trustee, the undersigned hereby requests a release of the Mortgage File (or the
portion thereof specified below) held by you with respect to the following
described Mortgage Loan for the reason indicated below.
Property Name:
Property Address:
Control No.:
The Mortgage File should be delivered to the following:
------------------------------------------------
------------------------------------------------
------------------------------------------------
Attn: _________________________________
Phone:_________________________________
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting file (or portion thereof):
_____ 1. Mortgage Loan is being foreclosed.
_____ 2. Other. (Describe)
--------------------------------------------------------------------
--------------------------------------------------------------------
--------------------------------------------------------------------
--------------------------------------------------------------------
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan is being foreclosed, in which case the Mortgage File (or such
portion thereof) will be returned when no longer required by us for such
purpose.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
LNR PARTNERS, INC.
as Special Servicer
By:_______________________________________________
Name___________________________________
Title:_________________________________
EXHIBIT E-1
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
_______________________, 200___
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group, XXXX 0000-XX0
Re: Xxxxxxx Xxxxx Mortgage Trust 2005-LC1, Commercial Mortgage Pass-Through
Certificates, Series 2005-LC1, Class _____, [having an initial aggregate
[Certificate Principal Balance] [Certificate Notional Amount] as of
December 28, 2005 (the "Closing Date") of $____________________ ]
[representing a _________% Percentage Interest in the subject Class]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
______________________________ (the "Transferor") to __________________________
(the "Transferee") of the captioned Certificates (the "Transferred
Certificates"), pursuant to Section 5.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of December 1, 2005, between
Xxxxxxx Xxxxx Mortgage Investors, Inc., as Depositor, GMAC Commercial Mortgage
Corporation, as Master Servicer, LNR Partners, Inc., as Special Servicer, Xxxxx
Fargo Bank, N.A., as Trustee, and LaSalle Bank National Association, as
Certificate Administrator. All capitalized terms used herein and not otherwise
defined shall have the respective meanings set forth in the Pooling and
Servicing Agreement. The Transferor hereby certifies, represents and warrants to
you, as Certificate Registrar, and for the benefit of the Trustee and the
Depositor, that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free from any and
all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or accept a
transfer, pledge or other disposition of any Transferred Certificate, any
interest in a Transferred Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any other
similar security with any person in any manner, (d) made any general
solicitation with respect to any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security by means of general
advertising or in any other manner, or (e) taken any other action with respect
to any Transferred Certificate, any interest in a Transferred Certificate or any
other similar security, which (in the case of any of the acts described in
clauses (a) through (e) hereof) would constitute a distribution of the
Transferred Certificates under the Securities Act of 1933, as amended (the
"Securities Act"), would render the disposition of the Transferred Certificates
a violation of Section 5 of the Securities Act or any state securities laws, or
would require registration or qualification of the Transferred Certificates
pursuant to the Securities Act or any state securities laws.
Very truly yours,
--------------------------------------------------
(Transferor)
By: _____________________________________________
Name: ________________________________
Title: _______________________________
EXHIBIT E-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group, XXXX 0000-XX0
Re: Xxxxxxx Xxxxx Mortgage Trust 2005-LC1, Commercial Mortgage Pass-Through
Certificates, Series 2005-LC1, Class _______, [having an initial aggregate
[Certificate Principal Balance] [Certificate Notional Amount] as of
December 28, 2005 (the "Closing Date") of $___________________________ ]
[representing a _______% Percentage Interest in the subject Class]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
______________________________ (the "Transferor") to ___________________________
(the "Transferee") of the captioned Certificates (the "Transferred
Certificates"), pursuant to Section 5.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of December 1, 2005, between
Xxxxxxx Xxxxx Mortgage Investors, Inc., as Depositor, GMAC Commercial Mortgage
Corporation, as Master Servicer, LNR Partners, Inc., as Special Servicer, Xxxxx
Fargo Bank, N.A., as Trustee, and LaSalle Bank National Association, as
Certificate Administrator. All capitalized terms used herein and not otherwise
defined shall have the respective meanings set forth in the Pooling and
Servicing Agreement. The Transferee hereby certifies, represents and warrants to
you, as Certificate Registrar, and for the benefit of the Trustee and the
Depositor, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "Securities Act"), and
has completed one of the forms of certification to that effect attached
hereto as Annex 1 and Annex 2. The Transferee is aware that the sale to it
is being made in reliance on Rule 144A. The Transferee is acquiring the
Transferred Certificates for its own account or for the account of another
Qualified Institutional Buyer, and understands that such Transferred
Certificates may be resold, pledged or transferred only (a) to a person
reasonably believed to be a Qualified Institutional Buyer that purchases
for its own account or for the account of another Qualified Institutional
Buyer and to whom notice is given that the resale, pledge or transfer is
being made in reliance on Rule 144A, or (b) pursuant to another exemption
from registration under the Securities Act.
2. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the nature, performance and servicing of the Mortgage Loans,
(d) the Pooling and Servicing Agreement and the Trust Fund created
pursuant thereto, and (e) all related matters, that it has requested.
3. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the
Nominee Acknowledgment below.
Very truly yours,
--------------------------------------------------
(Transferee)
By: _____________________________________________
Name: ________________________________
Title: _______________________________
Nominee Acknowledgment
----------------------
The undersigned hereby acknowledges and agrees that as to the
Transferred Certificates being registered in its name, the sole beneficial owner
thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
--------------------------------------------------
(Nominee)
By: _____________________________________________
Name: ________________________________
Title: _______________________________
ANNEX 1 TO EXHIBIT E-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to __________________________
(the "Transferor") and ______________________________, as Certificate Registrar,
with respect to the mortgage pass-through certificates (the "Transferred
Certificates") described in the Transferee certificate to which this
certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee").
2.____The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as amended,
because (i) [the Transferee] [each of the Transferee's equity owners] owned
and/or invested on a discretionary basis $______________________(1) in
securities (other than the excluded securities referred to below) as of the end
of such entity's most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Transferee satisfies the criteria in the
category marked below.
_______ Corporation, etc. The Transferee is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended.
_______ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any state, U.S.
territory or the District of Columbia, the business of which
is substantially confined to banking and is supervised by the
state or territorial banking commission or similar official or
is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Transferred Certificates in
the case of a U.S. bank, and not more than 18 months preceding
such date of sale in the case of a foreign bank or equivalent
institution.
_______ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a state or federal authority having
supervision over any such institutions, or is a foreign
savings and loan association or equivalent institution and (b)
has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a copy
of which is attached hereto, as of a date not more than 16
months preceding the date of sale of the Transferred
Certificates in the case of a U.S. savings and loan
association, and not more than 18 months preceding such date
of sale in the case of a foreign savings and loan association
or equivalent institution.
_______ Broker-dealer. The Transferee is a dealer registered pursuant
to Section 15 of the Securities Exchange Act of 1934, as
amended.
_______ Insurance Company. The Transferee is an insurance company
whose primary and predominant business activity is the writing
of insurance or the reinsuring of risks underwritten by
insurance companies and which is subject to supervision by the
insurance commissioner or a similar official or agency of a
state, U.S. territory or the District of Columbia.
_______ State or Local Plan. The Transferee is a plan established and
maintained by a state, its political subdivisions, or any
agency or instrumentality of the state or its political
subdivisions, for the benefit of its employees.
________ ERISA Plan. The Transferee is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income
Security Act of 1974.
________ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940.
________ QIB Subsidiary. All of the Transferee's equity owners are
"qualified institutional buyers" within the meaning of Rule
144A.
________ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it qualifies.
Note that registered investment companies should complete
Annex 2 rather than this Annex 1)_____________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
_____________________________________________________________.
3. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by any Person, the Transferee did not
include (i) securities of issuers that are affiliated with such Person, (ii)
securities that are part of an unsold allotment to or subscription by such
Person, if such Person is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by any Person, the Transferee used the
cost of such securities to such Person, unless such Person reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities were valued at market. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of such Person, but only if such subsidiaries
are consolidated with such Person in its financial statements prepared in
accordance with generally accepted accounting principles and if the investments
of such subsidiaries are managed under such Person's direction. However, such
securities were not included if such Person is a majority-owned, consolidated
subsidiary of another enterprise and such Person is not itself a reporting
company under the Securities Exchange Act of 1934, as amended.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee may be in reliance on Rule 144A.
_____ _____ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
8. Capitalized terms used but not defined herein have the respective
meanings ascribed thereto in the Pooling and Servicing Agreement pursuant to
which the Transferred Certificates were issued.
--------------------------------------------------
(Transferee)
By:_______________________________________________
Name:__________________________________
Title:_________________________________
Date:__________________________________
--------
(1) Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee or any
such equity owner, as the case may be, is a dealer, and, in that case,
Transferee or such equity owner, as the case may be, must own and/or invest on a
discretionary basis at least $10,000,000 in securities.
ANNEX 2 TO EXHIBIT E-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to
____________________________ (the "Transferor") and __________________________,
as Certificate Registrar, with respect to the mortgage pass-through certificates
(the "Transferred Certificates") described in the Transferee Certificate to
which this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A ("Rule 144A") under the Securities Act of 1933, as amended, because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in Rule
144A because (i) the Transferee is an investment company registered under the
Investment Company Act of 1940, and (ii) as marked below, the Transferee alone
owned and/or invested on a discretionary basis, or the Transferee's Family of
Investment Companies owned, at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Transferee's most
recent fiscal year. For purposes of determining the amount of securities owned
by the Transferee or the Transferee's Family of Investment Companies, the cost
of such securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities of such entity were valued at
market.
_______ The Transferee owned and/or invested on a discretionary basis
$___________________________ in securities (other than the
excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
_______ The Transferee is part of a Family of Investment Companies
which owned in the aggregate $_____________________________ in
securities (other than the excluded securities referred to
below) as of the end of the Transferee's most recent fiscal
year (such amount being calculated in accordance with Rule
144A).
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee or are part of the Transferee's
Family of Investment Companies, (ii) bank deposit notes and certificates of
deposit, (iii) loan participations, (iv) repurchase agreements, (v) securities
owned but subject to a repurchase agreement and (vi) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, or owned by
the Transferee's Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee will be in reliance on Rule 144A.
_____ _____ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification is
made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
8. Capitalized terms used but not defined herein have the respective
meanings ascribed thereto in the Pooling and Servicing Agreement pursuant to
which the Transferred Certificates were issued.
--------------------------------------------------
[Transferee][Adviser]
By:_______________________________________________
Name:__________________________________
Title:_________________________________
Date: ________________________________
IF AN ADVISER:
--------------------------------------------------
(Transferee)
Date: ________________________________
EXHIBIT E-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
_______________________, 200___
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group, XXXX 0000-XX0
Re: Xxxxxxx Xxxxx Mortgage Trust 2005-LC1, Commercial Mortgage
Pass-Through Certificates, Series 2005-LC1, Class _______, [having
an initial aggregate [Certificate Principal Balance] [Certificate
Notional Amount] as of December 28, 2005 (the "Closing Date") of
$__________________]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
______________________________ (the "Transferor") to
______________________________ (the "Transferee") of the captioned Certificates
(the "Transferred Certificates"), pursuant to Section 5.02 of the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
December 1, 2005, between Xxxxxxx Xxxxx Mortgage Investors, Inc., as Depositor,
GMAC Commercial Mortgage Corporation, as Master Servicer, LNR Partners, Inc., as
Special Servicer, Xxxxx Fargo Bank, N.A., as Trustee, and LaSalle Bank National
Association, as Certificate Administrator. All capitalized terms used herein and
not otherwise defined shall have the respective meanings set forth in the
Pooling and Servicing Agreement. The Transferee hereby certifies, represents and
warrants to you, as Certificate Registrar, and for the benefit of the Trustee
and the Depositor, that:
1. The Transferee is acquiring the Transferred Certificates for its own
account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Transferred Certificates have
not been and will not be registered under the Securities Act or registered or
qualified under any applicable state securities laws, (b) none of the Depositor,
the Trustee or the Certificate Registrar is obligated so to register or qualify
the Class of Certificates to which the Transferred Certificates belong, and (c)
neither a Transferred Certificate nor any security issued in exchange therefor
or in lieu thereof may be resold or transferred unless it is (i) registered
pursuant to the Securities Act and registered or qualified pursuant to any
applicable state securities laws or (ii) sold or transferred in transactions
which are exempt from such registration and qualification and the Certificate
Registrar has received: (A) a certification from the Certificateholder desiring
to effect such transfer substantially in the form attached as Exhibit E-1 to the
Pooling and Servicing Agreement and a certification from such
Certificateholder's prospective transferee substantially in the form attached
either as Exhibit E-2A to the Pooling and Servicing Agreement or as Exhibit E-2B
to the Pooling and Servicing Agreement; or (B) an opinion of counsel
satisfactory to the Trustee with respect to, among other things, the
availability of such exemption from registration under the Securities Act,
together with copies of the written certification(s) from the transferor and/or
transferee setting forth the facts surrounding the transfer upon which such
opinion is based.
3. The Transferee understands that it may not sell or otherwise transfer
any Transferred Certificate or interest therein, except in compliance with the
provisions of Section 5.02 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed, and that each Transferred Certificate will
bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY
STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR
ANY INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY
IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND
WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A)
ANY RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), OR (B) ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
4. Neither the Transferee nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Transferred Certificate,
any interest in any Transferred Certificate or any other similar security to any
person in any manner, (b) solicited any offer to buy or accept a pledge,
disposition or other transfer of any Transferred Certificate, any interest in
any Transferred Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any Transferred
Certificate, any interest in any Transferred Certificate or any other similar
security with any person in any manner, (d) made any general solicitation with
respect to any Transferred Certificate, any interest in any Transferred
Certificate or any other similar security by means of general advertising or in
any other manner, or (e) taken any other action with respect to any Transferred
Certificate, any interest in any Transferred Certificate or any other similar
security, which (in the case of any of the acts described in clauses (a) through
(e) above) would constitute a distribution of the Transferred Certificates under
the Securities Act, would render the disposition of the Transferred Certificates
a violation of Section 5 of the Securities Act or any state securities law or
would require registration or qualification of the Transferred Certificates
pursuant thereto. The Transferee will not act, nor has it authorized or will it
authorize any person to act, in any manner set forth in the foregoing sentence
with respect to any Transferred Certificate, any interest in any Transferred
Certificate or any other similar security.
5. The Transferee has been furnished with all information regarding (a)
the Depositor, (b) the Transferred Certificates and distributions thereon, (c)
the Pooling and Servicing Agreement and the Trust Fund created pursuant thereto,
(d) the nature, performance and servicing of the Mortgage Loans, and (e) all
related matters, that it has requested.
6. The Transferee is an "accredited investor" as defined in any of
paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act or an
entity in which all of the equity owners come within such paragraphs. The
Transferee has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of an investment in the
Transferred Certificates; the Transferee has sought such accounting, legal and
tax advice as it has considered necessary to make an informed investment
decision; and the Transferee is able to bear the economic risks of such
investment and can afford a complete loss of such investment.
7. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgement below.
Very truly yours,
--------------------------------------------------
(Transferee)
By:_______________________________________________
Name:__________________________________
Title:_________________________________
Nominee Acknowledgement
-----------------------
The undersigned hereby acknowledges and agrees that as to the Transferred
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Transferee identified above, for whom the undersigned is acting
as nominee.
--------------------------------------------------
(Nominee)
By:_______________________________________________
Name:__________________________________
Title:_________________________________
EXHIBIT E-2C
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN RULE 144A GLOBAL CERTIFICATES
_______________________, 200___
________________________________
________________________________
________________________________
________________________________
(Name and Address of Transferor)
Re: Xxxxxxx Xxxxx Mortgage Trust 2005-LC1, Commercial Mortgage Pass-Through
Certificates, Series 2005-LC1, Class _______, having an initial aggregate
[Certificate Principal Balance] [Certificate Notional Amount] as of
December 28, 2005 (the "Closing Date") of $______________
Ladies and Gentlemen:
This letter is delivered to you in connection with the Transfer by
_________________________ (the "Transferor") to __________________________ (the
"Transferee") through our respective Depository Participants of the Transferor's
beneficial ownership interest (currently maintained on the books and records of
The Depository Trust Company ("DTC") and the Depository Participants) in the
captioned Certificates (the "Transferred Certificates"), pursuant to Section
5.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of December 1, 2005, between Xxxxxxx Xxxxx Mortgage
Investors, Inc., as Depositor, GMAC Commercial Mortgage Corporation, as Master
Servicer, LNR Partners, Inc., as Special Servicer, Xxxxx Fargo Bank, N.A., as
Trustee, and LaSalle Bank National Association, as Certificate Administrator.
All capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to and agrees with you, and
for the benefit of the Depositor, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A") under
the Securities Act of 1933, as amended (the "Securities Act"), and has completed
one of the forms of certification to that effect attached hereto as Annex 1 and
Annex 2. The Transferee is aware that the Transfer to it of the Transferor's
interest in the Transferred Certificates is being made in reliance on Rule 144A.
The Transferee is acquiring such interest in the Transferred Certificates for
its own account or for the account of another Qualified Institutional Buyer.
2. The Transferee understands that (a) the Transferred Certificates have
not been and will not be registered under the Securities Act or registered or
qualified under any applicable state securities laws, (b) none of the Depositor,
the Trustee or the Certificate Registrar is obligated so to register or qualify
the Transferred Certificates and (c) no interest in the Transferred Certificates
may be resold or transferred unless (i) such Certificates are registered
pursuant to the Securities Act and registered or qualified pursuant any
applicable state securities laws, or (ii) such interest is sold or transferred
in a transaction which is exempt from such registration and qualification and
the Transferor desiring to effect such transfer has received (A) a certificate
from such Certificate Owner's prospective transferee substantially in the form
attached as Exhibit E-2C to the Pooling and Servicing Agreement or (B) an
opinion of counsel to the effect that, among other things, such prospective
transferee is a Qualified Institutional Buyer and such transfer may be made
without registration under the Securities Act.
3. The Transferee understands that it may not sell or otherwise transfer
the Transferred Certificates or any interest therein except in compliance with
the provisions of Section 5.02 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed, and that the Transferred Certificates will
bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR
ANY INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY
IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND
WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A)
ANY RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), OR (B) ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
4. The Transferee has been furnished with all information regarding (a)
the Depositor, (b) the Transferred Certificates and distributions thereon, (c)
the nature, performance and servicing of the Mortgage Loans, (d) the Pooling and
Servicing Agreement and the Trust Fund created pursuant thereto, (e) any credit
enhancement mechanism associated with the Transferred Certificates, and (f) all
related matters, that it has requested.
Very truly yours,
--------------------------------------------------
(Transferee)
By:_______________________________________________
Name:__________________________________
Title:_________________________________
ANNEX 1 TO EXHIBIT E-2C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees other than Registered Investment Companies]
The undersigned hereby certifies as follows to
____________________________ (the "Transferor") and for the benefit of Xxxxxxx
Xxxxx Mortgage Investors, Inc. with respect to the mortgage pass-through
certificates being transferred in book-entry form (the "Transferred
Certificates") as described in the Transferee Certificate to which this
certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity acquiring interests in the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended ("Rule 144A"),
because (i) [the Transferee] [each of the Transferee's equity owners] owned
and/or invested on a discretionary basis $______________________(2) in
securities (other than the excluded securities referred to below) as of the end
of such entity's most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Transferee satisfies the criteria in the
category marked below.
_______ Corporation, etc. The Transferee is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended.
_______ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any state, U.S.
territory or the District of Columbia, the business of which
is substantially confined to banking and is supervised by the
state or territorial banking commission or similar official or
is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Transferred Certificates in
the case of a U.S. bank, and not more than 18 months preceding
such date of sale in the case of a foreign bank or equivalent
institution.
_______ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a state or federal authority having
supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Transferred Certificates in
the case of a U.S. savings and loan association, and not more
than 18 months preceding such date of sale in the case of a
foreign savings and loan association or equivalent
institution.
_______ Broker-dealer. The Transferee is a dealer registered pursuant
to Section 15 of the Securities Exchange Act of 1934, as
amended.
_______ Insurance Company. The Transferee is an insurance company
whose primary and predominant business activity is the writing
of insurance or the reinsuring of risks underwritten by
insurance companies and which is subject to supervision by the
insurance commissioner or a similar official or agency of a
state, U.S. territory or the District of Columbia.
_______ State or Local Plan. The Transferee is a plan established
and maintained by a state, its political subdivisions, or
any agency or instrumentality of the state or its political
subdivisions, for the benefit of its employees.
_______ ERISA Plan. The Transferee is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income
Security Act of 1974.
_______ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as
amended.
_______ QIB Subsidiary. All of the Transferee's equity owners are
"qualified institutional buyers" within the meaning of Rule
144A.
_______ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it qualifies.
Note that registered investment companies should complete
Annex 2 rather than this Annex 1.)
3. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by any Person, the Transferee did not
include (i) securities of issuers that are affiliated with such Person, (ii)
securities that are part of an unsold allotment to or subscription by such
Person, if such Person is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by any Person, the Transferee used the
cost of such securities to such Person, unless such Person reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities were valued at market. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of such Person, but only if such subsidiaries
are consolidated with such Person in its financial statements prepared in
accordance with generally accepted accounting principles and if the investments
of such subsidiaries are managed under such Person's direction. However, such
securities were not included if such Person is a majority-owned, consolidated
subsidiary of another enterprise and such Person is not itself a reporting
company under the Securities Exchange Act of 1934, as amended.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the Transferred
Certificates are relying and will continue to rely on the statements made herein
because one or more Transfers to the Transferee may be in reliance on Rule 144A.
Will the Transferee be acquiring interests in the
_____ _____ Transferred Certificates only for the Transferee's
Yes No own account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is acquiring any interest in the Transferred Certificates
for an account other than its own, such account belongs to a third party that is
itself a "qualified institutional buyer" within the meaning of Rule 144A, and
the "qualified institutional buyer" status of such third party has been
established by the Transferee through one or more of the appropriate methods
contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's acquisition of any interest in of
the Transferred Certificates will constitute a reaffirmation of this
certification as of the date of such acquisition. In addition, if the Transferee
is a bank or savings and loan as provided above, the Transferee agrees that it
will furnish to such parties any updated annual financial statements that become
available on or before the date of such acquisition, promptly after they become
available.
8. Capitalized terms used but not defined herein have the meanings
ascribed thereto in the Pooling and Servicing Agreement pursuant to which the
Transferred Certificates were issued.
--------------------------------------------------
(Transferee)
By:_______________________________________________
Name:__________________________________
Title:_________________________________
Date: ________________________________
----------
(1) Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee or any
such equity owner, as the case may be, is a dealer, and, in that case,
Transferee or such equity owner, as the case may be, must own and/or invest on a
discretionary basis at least $10,000,000 in securities.
ANNEX 2 TO EXHIBIT E-2C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees that are Registered Investment Companies]
The undersigned hereby certifies as follows to _________________________
(the "Transferor") and for the benefit of Xxxxxxx Xxxxx Mortgage Investors, Inc.
with respect to the mortgage pass-through certificates being transferred in
book-entry form (the "Transferred Certificates") as described in the Transferee
certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity acquired interests the Transferred Certificates (the "Transferee") or, if
the Transferee is a "qualified institutional buyer" as that term is defined in
Rule 144A under the Securities Act of 1933, as amended ("Rule 144A"), because
the Transferee is part of a Family of Investment Companies (as defined below),
is an executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in Rule
144A because (i) the Transferee is an investment company registered under the
Investment Company Act of 1940, as amended, and (ii) as marked below, the
Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment Companies, as
the case may be, reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities of
such entity were valued at market.
_______ The Transferee owned and/or invested on a discretionary basis
$________________________ in securities (other than the
excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
_______ The Transferee is part of a Family of Investment Companies
which owned in the aggregate $_________________________ in
securities (other than the excluded securities referred to
below) as of the end of the Transferee's most recent fiscal
year (such amount being calculated in accordance with Rule
144A).
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee or are part of the Transferee's
Family of Investment Companies, (ii) bank deposit notes and certificates of
deposit, (iii) loan participations, (iv) repurchase agreements, (v) securities
owned but subject to a repurchase agreement and (vi) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, or owned by
the Transferee's Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
Transfers to the Transferee will be in reliance on Rule 144A.
Will the Transferee be acquiring interests in the
_____ _____ Transferred Certificates only for the Transferee's
Yes No own account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is acquiring any interest in the Transferred Certificates
for an account other than its own, such account belongs to a third party that is
itself a "qualified institutional buyer" within the meaning of Rule 144A, and
the "qualified institutional buyer" status of such third party has been
established by the Transferee through one or more of the appropriate methods
contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification is
made of any changes in the information and conclusions herein. Until such
notice, the Transferee's acquisition of any interest in the Transferred
Certificates will constitute a reaffirmation of this certification by the
undersigned as of the date of such acquisition.
8. Capitalized terms used but not defined herein have the meanings
ascribed thereto in the Pooling and Servicing Agreement pursuant to which the
Transferred Certificates were issued.
--------------------------------------------------
(Transferee or Adviser)
By:_______________________________________________
Name___________________________________
Title:_________________________________
Date: ________________________________
IF AN ADVISER:
Print Name of Transferee
--------------------------------------------------
Date: ________________________________
EXHIBIT E-2D
FORM OF TRANSFEREE CERTIFICATE FOR TRANSFERS OF
INTERESTS IN REGULATION S GLOBAL CERTIFICATES
[Date]
[TRANSFEROR]
Re: Xxxxxxx Xxxxx Mortgage Trust 2005-LC1, Commercial Mortgage Pass-Through
Certificates, Series 2005-LC1, Class ____, having an initial aggregate
Certificate [Principal Balance] [Notional Amount] as of December 28, 2005
(the "Closing Date") of $__________ (the "Transferred Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the Transfer by
______________________ (the "Transferor") to ______________________ (the
"Transferee") through our respective Depository Participants of the Transferor's
beneficial ownership interest (currently maintained on the books and records of
The Depository Trust Company ("DTC") and the Depository Participants) in the
Transferred Certificates. The Transferred Certificates were issued pursuant to
the Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"),
dated as of December 1, 2005, among Xxxxxxx Xxxxx Mortgage Investors, Inc., as
depositor, GMAC Commercial Mortgage Corporation as master servicer (the "Master
Servicer"), LNR Partners, Inc., as special servicer (the "Special Servicer"),
Xxxxx Fargo Bank, N.A., as trustee (the "Trustee"), and LaSalle Bank National
Association, as certificate administrator (the "Certificate Administrator"). All
capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to and agrees with you, and
for the benefit of the Depositor, that the Transferee is not a United States
Securities Person
For purposes of this certification, "United States Securities Person"
means (i) any natural person resident in the United States, (ii) any partnership
or corporation organized or incorporated under the laws of the United States;
(iii) any estate of which any executor or administrator is a United States
Securities Person, other than any estate of which any professional fiduciary
acting as executor or administrator is a United States Securities Person if an
executor or administrator of the estate who is not a United States Securities
Person has sole or shared investment discretion with respect to the assets of
the estate and the estate is governed by foreign law, (iv) any trust of which
any trustee is a United States Securities Person, other than a trust of which
any professional fiduciary acting as trustee is a United States Securities
Person if a trustee who is not a United States Securities Person has sole or
shared investment discretion with respect to the trust assets and no beneficiary
of the trust (and no settlor if the trust is revocable) is a United States
Securities Person, (v) any agency or branch of a foreign entity located in the
United States, unless the agency or branch operates for valid business reasons
and is engaged in the business of insurance or banking and is subject to
substantive insurance or banking regulation, respectively, in the jurisdiction
where located, (vi) any non-discretionary account or similar account (other than
an estate or trust) held by a dealer or other fiduciary for the benefit or
account of a United States Securities Person, (vii) any discretionary account or
similar account (other than an estate or trust) held by a dealer or other
fiduciary organized, incorporated or (if an individual) resident in the United
States, other than one held for the benefit or account of a non-United States
Securities Person by a dealer or other professional fiduciary organized,
incorporated or (if any individual) resident in the United States, (viii) any
partnership or corporation if (a) organized or incorporated under the laws of
any foreign jurisdiction and (b) formed by a United States Securities Person
principally for the purpose of investing in securities not registered under the
Securities Act, unless it is organized or incorporated, and owned, by
"accredited investors" (as defined in Rule 501(a)) under the United States
Securities Act of 1933, as amended (the "Securities Act"), who are not natural
persons, estates or trusts; provided, however, that the International Monetary
Fund, the International Bank for Reconstruction and Development, the
Inter-American Development Bank, the Asian Development Bank, the African
Development Bank, the United Nations and their agencies, affiliates and pension
plans, any other similar international organizations, their agencies, affiliates
and pension plans shall not constitute United States Securities Persons.
The Transferee understands that this certification is required in
connection with certain securities laws of the United States. In connection
therewith, if administrative or legal proceedings are commenced or threatened in
connection with which this certification is or would be relevant, we irrevocably
authorize you to produce this certification to any interested party in such
proceedings.
Dated: __________, _____
Very truly yours,
---------------------------------------------------
(Transferee)
By:_______________________________________________
Name:__________________________________
Title:_________________________________
EXHIBIT F-1
FORM I OF TRANSFEREE CERTIFICATE REGARDING ERISA MATTERS (DEFINITIVE
NON-REGISTERED CERTIFICATES)
___________________, 200__
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group, XXXX 0000-XX0
Re: Xxxxxxx Xxxxx Mortgage Trust 2005-LC1, Commercial Mortgage Pass-Through
Certificates, Series 2005-LC1 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
__________ (the "Transferor") to __________ (the "Transferee") of the Class
_________ Certificates (the "Transferred Certificates") [having an initial
aggregate [Certificate Principal Balance] [Certificate Notional Amount] as of
December 28, 2005 (the "Closing Date") of $_________ ] [evidencing a ____%
interest in the Classes to which they belong]. The Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as of December 1, 2005 (the
"Pooling and Servicing Agreement"), among Xxxxxxx Xxxxx Mortgage Investors,
Inc., as depositor, GMAC Commercial Mortgage Corporation, as master servicer,
LNR Partners, Inc., as special servicer, Xxxxx Fargo Bank, N.A., as trustee (the
"Trustee"), and LaSalle Bank National Association, as Certificate Administrator.
Capitalized terms used but not defined herein shall have the meanings set forth
in the Pooling and Servicing Agreement. The Transferee hereby certifies,
represents and warrants to you as follows (check the applicable paragraph):
_____ The Transferee (A) is not an employee benefit plan or other
retirement arrangement, including an individual retirement
account or annuity, a Xxxxx plan or a collective investment
fund or separate account in which such plans, accounts or
arrangements are invested, including, without limitation, an
insurance company general account, that is subject to ERISA or
the Code (each, a "Plan"), and (B) is not directly or
indirectly purchasing the Transferred Certificates on behalf
of, as named fiduciary of, as trustee of, or with assets of a
Plan; or
_____ The Transferee is using funds from an insurance company
general account to acquire the Transferred Certificates,
however, the purchase and holding of such Certificates by such
Person is exempt from the prohibited transaction provisions of
Sections 406 and 407 of ERISA and the excise taxes imposed on
such prohibited transactions by Section 4975 of the Code, by
reason of Sections I and III of Prohibited Transaction Class
Exemption 95-60.
_____ The Transferred Certificates are Investment Grade Certificates
and are being acquired by or on behalf of a Plan in reliance
on Prohibited Transaction Exemption 90-29 or 2000-55; and such
Plan (X) is an accredited investor as defined in Rule
501(a)(1) of Regulation D of the Securities Act, (Y) is not
sponsored (within the meaning of Section 3(16)(B) of ERISA) by
the Trustee, the Depositor, any Mortgage Loan Seller, the
Master Servicer, the Special Servicer, any Sub-Servicer, the
Certificate Administrator, any Exemption-Favored Party or any
Mortgagor with respect to Mortgage Loans constituting more
than 5% of the aggregate unamortized principal balance of all
the Mortgage Loans determined on the date of the initial
issuance of the Certificates, or by any Affiliate of such
Person, and (Z) agrees that it will obtain from each of its
Transferees that are Plans a written representation that such
Transferee satisfies the requirements of the immediately
preceding clauses (X) and (Y), together with a written
agreement that such Transferee will obtain from each of its
Transferees that are Plans a similar written representation
regarding satisfaction of the requirements of the immediately
preceding clauses (X) and (Y).
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of the date first written above.
--------------------------------------------------
(Transferee)
By:_______________________________________________
Name___________________________________
Title:_________________________________
EXHIBIT F-2
FORM II OF TRANSFEREE CERTIFICATE REGARDING ERISA MATTERS
(BOOK-ENTRY NON-REGISTERED CERTIFICATES)
___________________, 200__
________________________________
________________________________
________________________________
________________________________
(Name and Address of Transferor)
Re: Xxxxxxx Xxxxx Mortgage Trust 2005-LC1, Commercial Mortgage Pass-Through
Certificates, Series 2005-LC1 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
__________ (the "Transferor") to __________ (the "Transferee") through our
respective Depository Participants of the Transferor's beneficial ownership
interest (currently maintained on the books and records of The Depository Trust
Corporation ("DTC") and the Depository Participants) in Class Certificates (the
"Transferred Certificates") [having an initial aggregate [Certificate Principal
Balance] [Certificate Notional Amount] as of December 28, 2005 (the "Closing
Date") of $ _____ ]. The Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as of December 1, 2005 (the "Pooling and Servicing
Agreement"), among Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor, GMAC
Commercial Mortgage Corporation, as master servicer, LNR Partners, Inc., as
special servicer, Xxxxx Fargo Bank, N.A., as trustee (the "Trustee"), and
LaSalle Bank National Association, as Certificate Administrator. Capitalized
terms used but not defined herein shall have the meanings set forth in the
Pooling and Servicing Agreement. The Transferee hereby certifies, represents and
warrants to you as follows (check the applicable paragraph):
_____ The Transferee (A) is not an employee benefit plan or other
retirement arrangement, including an individual retirement
account or annuity, a Xxxxx plan or a collective investment
fund or separate account in which such plans, accounts or
arrangements are invested, including, without limitation, an
insurance company general account, that is subject to ERISA or
the Code (each, a "Plan"), and (B) is not directly or
indirectly purchasing the Transferred Certificates on behalf
of, as named fiduciary of, as trustee of, or with assets of a
Plan; or
_____ The Transferee is using funds from an insurance company
general account to acquire the Transferred Certificates,
however, the purchase and holding of such Certificates by such
Person is exempt from the prohibited transaction provisions of
Sections 406 and 407 of ERISA and the excise taxes imposed on
such prohibited transactions by Section 4975 of the Code, by
reason of Sections I and III of Prohibited Transaction Class
Exemption 95-60.
_____ The Transferred Certificates are Investment Grade Certificates
and are being acquired by or on behalf of a Plan in reliance
on Prohibited Transaction Exemption 90-29 or 2000-55; and such
Plan (X) is an accredited investor as defined in Rule
501(a)(1) of Regulation D of the Securities Act, (Y) is not
sponsored (within the meaning of Section 3(16)(B) of ERISA) by
the Trustee, the Depositor, any Mortgage Loan Seller, the
Master Servicer, the Special Servicer, any Sub-Servicer, the
Certificate Administrator, any Exemption-Favored Party or any
Mortgagor with respect to Mortgage Loans constituting more
than 5% of the aggregate unamortized principal balance of all
the Mortgage Loans determined on the date of the initial
issuance of the Certificates, or by any Affiliate of such
Person, and (Z) agrees that it will obtain from each of its
Transferees that are Plans a written representation that such
Transferee satisfies the requirements of the immediately
preceding clauses (X) and (Y), together with a written
agreement that such Transferee will obtain from each of its
Transferees that are Plans a similar written representation
regarding satisfaction of the requirements of the immediately
preceding clauses (X) and (Y).
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of the date first written above.
--------------------------------------------------
(Transferee)
By:_______________________________________________
Name___________________________________
Title:_________________________________
EXHIBIT G-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
REGARDING RESIDUAL INTEREST CERTIFICATES
TRANSFER AFFIDAVIT PURSUANT TO SECTIONS
860D(a)(6)(A) AND 860E(e)(4) OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED, AND
TREASURY REGULATION SECTION 1.860E-1(c)(4)
Re: Xxxxxxx Xxxxx Mortgage Trust 2005-LC1, Commercial Mortgage Pass-Through
Certificates, Series 2005-LC1 (the "Certificates"), issued pursuant to the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"),
dated as of December 1, 2005, between Xxxxxxx Xxxxx Mortgage Investors,
Inc., as Depositor, GMAC Commercial Mortgage Corporation, as Master
Servicer, LNR Partners, Inc., as Special Servicer, Xxxxx Fargo Bank, N.A.,
as Trustee, and LaSalle Bank National Association., as Certificate
Administrator
STATE OF __________________________ )
) ss.: _____________________________
COUNTY OF ________________________ )
The undersigned declares that, to the best knowledge and belief of the
undersigned, the following representations are true, correct and complete:
1.__________________________________ (the "Purchaser"), is acquiring Class
[R-I] [R-II] Certificates representing ________________% of the residual
interest in [each of] the real estate mortgage investment conduit[s] ([each,] a
"REMIC") designated as ["REMIC I"] ["REMIC II"], [respectively], relating to the
Certificates for which an election is to be made under Section 860D of the
Internal Revenue Code of 1986, as amended (the "Code").
2. The Purchaser is not a "Disqualified Organization" (as defined below),
and the Purchaser is not acquiring the Class [R-I] [R-II] Certificates for the
account of, or as agent or nominee of, or with a view to the transfer of direct
or indirect record or beneficial ownership thereof, to a Disqualified
Organization. For the purposes hereof, a Disqualified Organization is any of the
following: (i) the United States, (ii) any state or political subdivision
thereof, (iii) any foreign government, (iv) any international organization, (v)
any agency or instrumentality of any of the foregoing, (vi) any tax-exempt
organization (other than a cooperative described in Section 521 of the Code)
which is exempt from the tax imposed by Chapter 1 of the Code unless such
organization is subject to the tax imposed by Section 511 of the Code, (vii) any
organization described in Section 1381(a)(2)(C) of the Code, or (viii) any other
entity designated as a "disqualified organization" by relevant legislation
amending the REMIC Provisions and in effect at or proposed to be effective as of
the time of determination. In addition, a corporation will not be treated as an
instrumentality of the United States or of any state or political subdivision
thereof if all of its activities are subject to tax (except for the Federal Home
Loan Mortgage Corporation) and a majority of its board of directors is not
selected by such governmental unit. The terms "United States" and "international
organization" shall have the meanings set forth in Section 7701 of the Code.
3. The Purchaser acknowledges that Section 860E(e) of the Code would
impose a substantial tax on the transferor or, in certain circumstances, on an
agent for the transferee, with respect to any transfer of any interest in any
Class [R-I] [R-II] Certificates to a Disqualified Organization.
4. The Purchaser will not transfer the Class [R-I] [R-II] Certificates to
any person or entity as to which the Purchaser has not received an affidavit
substantially in the form of this affidavit or to any person or entity as to
which the Purchaser has actual knowledge that the requirements set forth in
paragraphs 2 and 7 hereof are not satisfied, or to any person or entity with
respect to which the Purchaser has not (at the time of such transfer) satisfied
the requirements under the Code to conduct a reasonable investigation of the
financial condition of such person or entity (or its current beneficial owners
if such person or entity is classified as a partnership under the Code).
5. The Purchaser agrees to such amendments of the Pooling and Servicing
Agreement as may be required to further effectuate the prohibition against
transferring the Class [R-I] [R-II] Certificates to a Disqualified Organization,
an agent thereof or a person that does not satisfy the requirements of paragraph
7.
6. The Purchaser consents to the designation of the Trustee as the agent
of the Tax Matters Person of [REMIC I] [REMIC II] pursuant to Section 10.01(d)
of the Pooling and Servicing Agreement.
7. No purpose of the acquisition of the Class [R-I] [R-II] Certificates is
to impede the assessment or collection of tax.
[CHOOSE BETWEEN PARAGRAPHS 8 OR 9 BELOW]
8. If the Transferor requires the safe harbor under Treasury regulations
section 1.860E-1 to apply:
i. The Purchaser historically has paid its debts as they have come due
and intends to pay its debts as they come due in the future and the
Purchaser intends to pay taxes associated with holding the Class
[R-I] [R-II] Certificates as they become due.
ii. The Purchaser understands that it may incur tax liabilities with
respect to the Class [R-I] [R-II] Certificates in excess of any cash
flows generated by such Certificates.
iii. The Purchaser is not a foreign permanent establishment or a fixed
base (within the meaning of any applicable income tax treaty between
the United States and any foreign jurisdiction) of a United States
Tax Person.
iv. The Purchaser will not cause the income from the Class [R-I] [R-II]
Certificates to be attributable to a foreign permanent establishment
or fixed base (within the meaning of any applicable income tax
treaty between the United States and any foreign jurisdiction) of a
United States Tax Person.
[CHECK THE STATEMENT THAT APPLIES]
|_| v) In accordance with Treasury Regulations Section 1.860E-1, the
Purchaser:
a) is an "eligible corporation" as defined in Section
1.860E-1(c)(6)(i) of the Treasury regulations (i.e., a domestic C
corporation other than a corporation which is exempt from, or is not
subject to, tax under Section 11 of the Code; a Regulated Investment
Company as defined in Section 851(a) of the Code; a Real Estate
Investment Trust as defined in Section 856(a) of the Code; a REMIC
as defined in Section 860D of the Code; or an organization to which
part I of subchapter T of chapter 1 of subtitle A of the Code
applies, as to which the income of Class [R-I] [R-II] Certificates
will only be subject to taxation in the United States,
b) has, and has had in each of its two preceding fiscal years, gross
assets for financial reporting purposes (excluding any obligation of
a person related to the transferee within the meaning of Section
1.860E-1(c)(6)(ii) of the Treasury regulations or any other assets
if a principal purpose for holding or acquiring such asset is to
satisfy this condition) in excess of $100 million and net assets of
$10 million, and
c) hereby agrees only to transfer the Certificate to another
"eligible corporation" meeting the criteria set forth in Treasury
regulations section 1.860E-1.
OR
|_| vi) The Purchaser is a United States Tax Person and the consideration
paid to the Purchaser for accepting the Class [R-I] [R-II]
Certificates is greater than the present value of the anticipated
net federal income taxes and tax benefits ("Tax Liability Present
Value") associated with owning such Certificates, with such
present value computed using a discount rate equal to the
"Federal short-term rate" prescribed by Section 1274 of the Code
as of the date hereof or, to the extent it is not, if the
Transferee has asserted that it regularly borrows, in the
ordinary course of its trade or business, substantial funds from
unrelated third parties at a lower interest rate than such
applicable federal rate and the consideration paid to the
Purchaser is greater than the Tax Liability Present Value using
such lower interest rate as the discount rate, the transactions
with the unrelated third party lenders, the interest rate or
rates, the date or dates of such transactions, and the maturity
dates or, in the case of adjustable rate debt instruments, the
relevant adjustment dates or periods, with respect to such
borrowings, are accurately stated in Exhibit A to this letter
|_| 9. If the Transferor does not require the safe harbor under Treasury
regulations section 1.860E-1 to apply: [CHECK THE STATEMENT THAT APPLIES]
|_| i) The Purchaser is a "United States person" as defined in Section
7701(a) of the Code and the regulations promulgated thereunder (the
Purchaser's U.S. taxpayer identification number is ______________).
The Purchaser is not classified as a partnership under the Code (or,
if so classified, all of its beneficial owners are United States
persons).
OR
|_| ii) The Purchaser is not a United States person. However, the Purchaser:
a) conducts a trade or business within the United States and, for
purposes of Treasury regulations section 1.860G-3(a)(3), is subject
to tax under Section 882 of the Code;
b) understands that, for purposes of Treasury regulations section
1.860E-1(c)(4)(ii), as a holder of a Class [R-I] [R-II] Certificate
for United States federal income tax purposes, it may incur tax
liabilities in excess of any cash flows generated by such Class
[R-I] [R-II] Certificate;
c) intends to pay the taxes associated with holding a Class [R-I]
[R-II] Certificate;
d) is not classified as a partnership under the Code (or, if so
classified, all of its beneficial owners either satisfy clauses (a),
(b) and (c) of this sentence or are United States persons); and e)
has furnished the Transferor and the Trustee with an effective IRS
Form W-8ECI or successor form and will update such form as may be
required under the applicable Treasury regulations
Capitalized terms used but not defined herein have the meanings assigned
thereto in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be duly
executed on its behalf by its duly authorized officer this _______ day of
___________________________.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Personally appeared before me ___________________________, known or proved
to me to be the same person who executed the foregoing instrument and to be a
_______________________ of the Purchaser, and acknowledged to me that he/she
executed the same at his/her free act and deed and at the free act and deed of
the Purchaser.
Subscribed and sworn before me this
_________ day of ______________________,
20_____.
--------------------------------------------
Notary Public
EXHIBIT G-2
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF RESIDUAL CERTIFICATES
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group, XXXX 0000-XX0
Re: Xxxxxxx Xxxxx Mortgage Trust 2005-LC1, Commercial Mortgage Pass-Through
Certificates, Series 2005-LC1 (the "Certificates"), Class [R-I] [R-II]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the above-captioned Certificates evidencing a ___% Percentage Interest in such
Class (the "Residual Certificates"). The Certificates, including the Residual
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of December 1, 2005 (the "Pooling and Servicing Agreement"), between Xxxxxxx
Xxxxx Mortgage Investors, Inc., as Depositor, GMAC Commercial Mortgage
Corporation, as Master Servicer, LNR Partners, Inc., as Special Servicer, Xxxxx
Fargo Bank, N.A., as Trustee, and LaSalle Bank National Association, as
Certificate Administrator. All capitalized terms used but not otherwise defined
herein shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferor hereby certifies, represents and warrants to you, as
Certificate Registrar, that:
1. No purpose of the Transferor relating to the transfer of the
Residual Certificates by the Transferor to the Transferee is or will be to
impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered to
you a Transfer Affidavit and Agreement in the form attached to the Pooling
and Servicing Agreement as Exhibit G-1. The Transferor does not know or
believe that any representation contained therein is false.
3. The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee (or
the beneficial owners of the Transferee if it is classified as a
partnership under the Internal Revenue Code of 1986, as amended) as
contemplated by Treasury regulations section 1.860E-1(c)(4)(i) and, as a
result of that investigation, the Transferor has determined that the
Transferee has historically paid its debts as they became due and has
found no significant evidence to indicate that the Transferee will not
continue to pay its debts as they become due in the future. The Transferor
understands that the transfer of the Residual Certificates may not be
respected for United States income tax purposes (and the Transferor may
continue to be liable for United States income taxes associated therewith)
unless the Transferor has conducted such an investigation.
Very truly yours,
--------------------------------------------------
(Transferor)
Name:__________________________________
Title:_________________________________
EXHIBIT H-1
FORM OF NOTICE AND ACKNOWLEDGMENT
[Date]
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Standard and Poor's Ratings Services,
a division of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx, 00000
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 6.09 of the
Pooling and Servicing Agreement dated as of December 1, 2005 relating to Xxxxxxx
Xxxxx Mortgage Trust 2005-LC1, Commercial Mortgage Pass-Through Certificates,
Series 2005-LC1 (the "Agreement"). Any term with initial capital letters not
otherwise defined in this notice has the meaning given such term in the
Agreement.
Notice is hereby given that the Holders of Certificates evidencing a
majority of the Voting Rights allocated to the Controlling Class have designated
[name of proposed special servicer] to serve as the Special Servicer under the
Agreement.
The designation of [name of proposed special servicer] as Special
Servicer will become final if certain conditions are met and on the date you
will deliver to Xxxxx Fargo Bank, N.A., the trustee under the Agreement (the
"Trustee"), a written confirmation stating that the appointment of the person
designated to become the Special Servicer will not result in the qualification,
downgrading or withdrawal of the rating or ratings assigned to one or more
Classes of the Certificates.
Please acknowledge receipt of this notice by signing the enclosed
copy of this notice where indicated below and returning it to the Trustee, in
the enclosed stamped self-addressed envelope.
Very truly yours,
XXXXX FARGO BANK, N.A.
By:_______________________________________________
Name
Title:
Received and acknowledged:
Xxxxx'x Investor Service, Inc. Standard and Poor's Ratings Servicers,
a division of The XxXxxx-Xxxx
By: _________________________ Companies, Inc.
Name:
Title:
By: _________________________
Date:________________________ Name:
Title:
Date:________________________
EXHIBIT H-2
FORM OF ACKNOWLEDGMENT OF PROPOSED SPECIAL SERVICER
[Date]
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services, MLMT 2005-LC1
Attn: Xxxxxxx Xxxxx Mortgage Trust 2005-LC1,
Commercial Mortgage Pass-Through Certificates, Series 2005-LC1
Ladies & Gentlemen:
Pursuant to Section 6.09 of the Pooling and Servicing Agreement
dated as of December 1, 2005 relating to Xxxxxxx Xxxxx Mortgage Trust 2005-LC1,
Commercial Mortgage Pass-Through Certificates, Series 2005-LC1 (the
"Agreement"), the undersigned hereby agrees with all the other parties to the
Agreement that the undersigned shall serve as Special Servicer under, and as
defined in, the Agreement. The undersigned hereby acknowledges that, as of the
date hereof, it is and shall be a party to the Agreement and bound thereby to
the full extent indicated therein in the capacity of Special Servicer. The
undersigned hereby makes, as of the date hereof, the representations and
warranties set forth in Section 3.23(b) of the Agreement as if it were the
Special Servicer hereunder.
[Name of Proposed Special Servicer]
--------------------------------------------------
By:_______________________________________________
Name___________________________________
Title:_________________________________
EXHIBIT I-1
FORM OF INFORMATION REQUEST FROM
CERTIFICATEHOLDER OR CERTIFICATE OWNER
______________________, 200__
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services, MLMT 2005-LC1
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group, MLMT 2005-LC1
GMAC Commercial Mortgage Corporation
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Xxxxxxx Xxxxx Mortgage Investors, Inc.
4 World Financial Center
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Xxxxxxx Xxxxx Mortgage Trust 2005-LC1
Commercial Mortgage Pass-Through Certificates, Series 2005-LC1
In accordance with the Pooling and Servicing Agreement dated as of
December 1, 2005 (the "Pooling and Servicing Agreement"), among Xxxxxxx Xxxxx
Mortgage Investors, Inc., as depositor (the "Depositor"), GMAC Commercial
Mortgage Corporation, as master servicer (the "Master Servicer"), LNR Partners,
Inc., as special servicer, Xxxxx Fargo Bank, N.A., as trustee (the "Trustee"),
and LaSalle Bank National Association, as certificate administrator, with
respect to the Xxxxxxx Xxxxx Mortgage Trust 2005-LC1, Commercial Mortgage
Pass-Through Certificates, Series 2005-LC1 (the "Certificates"), the undersigned
(the "Investor") hereby certifies and agrees as follows:
1. The Investor is a [holder] [beneficial owner] of [$__________
aggregate [Certificate Principal Balance/Certificate Notional
Amount] of] [a ___% Percentage Interest in] the Class ____
Certificates.
2. The Investor is requesting access to the following information (the
"Information") solely for use in evaluating the Investor's
investment in the Certificates:
___ The information available on the Master Servicer's internet
website pursuant to Section 3.15 of the Pooling and Servicing
Agreement.
___ The information available on the Certificate Administrator's
internet website pursuant to Sections 3.15 and 4.02 of the
Pooling and Servicing Agreement.
___ The information identified on Schedule I attached hereto
pursuant to Sections 3.15 and 4.02 of the Pooling and
Servicing Agreement.
3. In consideration of the Master Servicer's, Certificate Administrator
or the Trustee's disclosure to the Investor of the Information, the
Investor will keep the Information confidential (except from such
outside Persons as are assisting it in evaluating the Information),
and such Information will not, without the prior written consent of
the Master Servicer, Certificate Administrator or the Trustee, as
applicable, be disclosed by the Investor or by its Affiliates,
officers, directors, partners, shareholders, members, managers,
employees, agents or representatives (collectively, the
"Representatives") in any manner whatsoever, in whole or in part;
provided, that the Investor may provide all or any part of the
Information to any other Person that holds or is contemplating the
purchase of any Certificate or interest therein, but only if such
Person confirms in writing such ownership interest or prospective
ownership interest and agrees to keep it confidential; and provided
further, that the Investor may provide all or any part of the
Information to its auditors, legal counsel and regulators; and
provided further, that the Investor shall not be obligated to keep
confidential any Information that has previously been made available
on an unrestricted basis and without a password via the Certificate
Administrator's or the Master Servicer's, as applicable, Internet
Website or has previously been filed with the Securities and
Exchange Commission.
4. The Investor will not use or disclose the Information in any manner
that could result in a violation of any provision of the Securities
Act of 1933, as amended (the "Securities Act"), or the Securities
Exchange Act of 1934, as amended, or that would require registration
of any Non-Registered Certificate pursuant to Section 5 of the
Securities Act.
5. The Investor hereby acknowledges and agrees that:
(a) None of the Master Servicer, Certificate Administrator or the
Trustee will make any representations or warranties as to the
accuracy or completeness of, and will assume no responsibility
for, any report, document or other information delivered
pursuant to this request or made available on its internet
website;
(b) None of the Master Servicer, Certificate Administrator or the
Trustee has undertaken any obligation to verify the accuracy
or completeness of any information provided by a Mortgagor, a
third party, each other or any other Person that is included
in any report, document or other information delivered
pursuant to this request or made available on its respective
internet website;
(c) Any transmittal of any report, document or other information
to the Investor by the Master Servicer, Certificate
Administrator or the Trustee is subject to, which transmittal
may (but need not be) accompanied by a letter containing, the
following provision:
By receiving the information set forth herein, you
hereby acknowledge and agree that the United States
securities laws restrict any person who possesses
material, non-public information regarding the Trust
which issued Xxxxxxx Xxxxx Mortgage Trust 2005-LC1,
Commercial Mortgage Pass-Through Certificates, Series
2005-LC1, from purchasing or selling such Certificates
in circumstances where the other party to the
transaction is not also in possession of such
information. You also acknowledge and agree that such
information is being provided to you for the purposes
of, and such information may be used only in connection
with, evaluation by you or another Certificateholder,
Certificate Owner or prospective purchaser of such
Certificates or beneficial interest therein;
(d) When delivering any report, document or other information
pursuant to this request, the Master Servicer, the Certificate
Administrator or the Trustee may (i) indicate the source
thereof and may affix thereto any disclaimer it deems
appropriate in its discretion and (ii) contemporaneously
provide such report, document or information to the Depositor,
the Trustee, the Certificate Administrator, any Underwriter,
any Rating Agency or Certificateholders or Certificate Owners.
6. The Investor agrees to indemnify and hold harmless the Master
Servicer, the Special Servicer, the Depositor, the Certificate
Administrator, the Trustee and the Trust from any damage, loss, cost
or liability (including legal fees and expenses and the cost of
enforcing this indemnity) arising out of or resulting from any
unauthorized use or disclosure of the Information by the Investor or
any of its Representatives. The Investor also acknowledges and
agrees that money damages would be both incalculable and an
insufficient remedy for any breach of the terms of this letter by
the Investor or any of its Representatives and that the Master
Servicer, the Certificate Administrator, the Trustee or the Trust
may seek equitable relief, including injunction and specific
performance, as a remedy for any such breach. Such remedies are not
the exclusive remedies for a breach of this letter but are in
addition to all other remedies available at law or equity.
Capitalized terms used in this letter but not defined have the respective
meanings given to them in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the Investor has caused its name to be signed hereto
by its duly authorized officer, as of the day and year written above.
[CERTIFICATEHOLDER] [BENEFICIAL OWNER OF A
CERTIFICATE]
By:_______________________________________________
Name______________________________________________
Title:____________________________________________
Telephone No.:____________________________________
SCHEDULE I
[DESCRIBE INFORMATION REQUESTED]
EXHIBIT I-2
FORM OF INFORMATION REQUEST FROM PROSPECTIVE INVESTOR
______________________, 200__
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services, MLMT 2005-LC1
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group, MLMT 2005-LC1
GMAC Commercial Mortgage Corporation
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Xxxxxxx Xxxxx Mortgage Investors, Inc.
4 World Financial Center
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Xxxxxxx Xxxxx Mortgage Trust 2005-LC1
Commercial Mortgage Pass-Through Certificates, Series 2005-LC1
(the "Certificates")
In accordance with the Pooling and Servicing Agreement dated as of
December 1, 2005 (the "Pooling and Servicing Agreement"), among Xxxxxxx Xxxxx
Mortgage Investors, Inc., as depositor (the "Depositor"), GMAC Commercial
Mortgage Corporation, as master servicer (the "Master Servicer"), LNR Partners,
Inc., as special servicer, Xxxxx Fargo Bank, N.A., as trustee (the "Trustee"),
and LaSalle Bank National Association, as certificate administrator, with
respect to the Xxxxxxx Xxxxx Mortgage Trust 2005-LC1, Commercial Mortgage
Pass-Through Certificates, Series 2005-LC1 (the "Certificates"), the undersigned
(the "Investor") hereby certifies and agrees as follows:
1. The Investor is contemplating an investment in the Class ____
Certificates.
2. The Investor is requesting access to the following information (the
"Information") solely for use in evaluating such possible
investment:
___ The information available on the Master Servicer's internet
website pursuant to Section 3.15 of the Pooling and Servicing
Agreement.
___ The information available on the Certificate Administrator's
internet website pursuant to Sections 3.15 and 4.02 of the
Pooling and Servicing Agreement.
___ The information identified on Schedule I attached hereto
pursuant to Sections 3.15 and 4.02 of the Pooling and
Servicing Agreement.
3. In consideration of the Master Servicer's or the Trustee's
disclosure to the Investor of the Information, the Investor will
keep the Information confidential (except from such outside
Persons as are assisting it in making the investment decision
described in paragraph 1), and such Information will not, without
the prior written consent of the Master Servicer or the Trustee,
as applicable, be disclosed by the Investor or by its Affiliates,
officers, directors, partners, shareholders, members, managers,
employees, agents or representatives (collectively, the
"Representatives") in any manner whatsoever, in whole or in part;
provided, that the Investor may provide all or any part of the
Information to any other Person that holds or is contemplating
the purchase of any Certificate or interest therein, but only if
such Person confirms in writing such ownership interest or
prospective ownership interest and agrees to keep it
confidential; and provided further, that the Investor may provide
all or any part of the Information to its auditors, legal counsel
and regulators; and provided further, that the Investor shall not
be obligated to keep confidential any Information that has
previously been made available on an unrestricted basis and
without a password via the Trustee's or the Master Servicer's, as
applicable, Internet Website or has previously been filed with
the Securities and Exchange Commission.
4. The Investor will not use or disclose the Information in any manner
that could result in a violation of any provision of the Securities
Act of 1933, as amended (the "Securities Act"), or the Securities
Exchange Act of 1934, as amended, or that would require registration
of any Non-Registered Certificate pursuant to Section 5 of the
Securities Act.
5. The Investor hereby acknowledges and agrees that:
(a) None of the Master Servicer, the Certificate Administrator nor
the Trustee will make any representations or warranties as to
the accuracy or completeness of, and will assume no
responsibility for, any report, document or other information
delivered pursuant to this request or made available on its
internet website;
(b) None of the Master Servicer, the Certificate Administrator nor
the Trustee has undertaken any obligation to verify the
accuracy or completeness of any information provided by a
Mortgagor, a third party, each other or any other Person that
is included in any report, document or other information
delivered pursuant to this request or made available on its
respective internet website;
(c) Any transmittal of any report, document or other information
to the Investor by the Master Servicer, the Certificate
Administrator or the Trustee is subject to, which transmittal
may (but need not be) accompanied by a letter containing, the
following provision:
By receiving the information set forth herein, you
hereby acknowledge and agree that the United States
securities laws restrict any person who possesses
material, non-public information regarding the Trust
which issued Xxxxxxx Xxxxx Mortgage Trust 2005-LC1,
Commercial Mortgage Pass-Through Certificates, Series
2005-LC1, from purchasing or selling such Certificates
in circumstances where the other party to the
transaction is not also in possession of such
information. You also acknowledge and agree that such
information is being provided to you for the purposes
of, and such information may be used only in connection
with, evaluation by you or another Certificateholder,
Certificate Owner or prospective purchaser of such
Certificates or beneficial interest therein;
(d) When delivering any report, document or other information
pursuant to this request, the Master Servicer, the Certificate
Administrator or the Trustee may (i) indicate the source
thereof and may affix thereto any disclaimer it deems
appropriate in its discretion and (ii) contemporaneously
provide such report, document or information to the Depositor,
the Trustee, the Certificate Administrator, any Underwriter,
any Rating Agency or Certificateholders or Certificate Owners.
6. The Investor agrees to indemnify and hold harmless the Master
Servicer, the Special Servicer, the Depositor, the Certificate
Administrator, the Trustee and the Trust from any damage, loss, cost
or liability (including legal fees and expenses and the cost of
enforcing this indemnity) arising out of or resulting from any
unauthorized use or disclosure of the Information by the Investor or
any of its Representatives. The Investor also acknowledges and
agrees that money damages would be both incalculable and an
insufficient remedy for any breach of the terms of this letter by
the Investor or any of its Representatives and that the Master
Servicer, the Certificate Administrator, the Trustee or the Trust
may seek equitable relief, including injunction and specific
performance, as a remedy for any such breach. Such remedies are not
the exclusive remedies for a breach of this letter but are in
addition to all other remedies available at law or equity.
Capitalized terms used in this letter but not defined have the respective
meanings given to them in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the Investor has caused its name to be signed hereto
by its duly authorized officer, as of the day and year written above.
[PROSPECTIVE PURCHASER]
By:_______________________________________________
Name___________________________________
Title:_________________________________
Telephone No.:_________________________
SCHEDULE I
[DESCRIBE INFORMATION REQUESTED]
EXHIBIT J
LIST OF MORTGAGE LOANS WITH SECURED CREDITOR IMPAIRED PROPERTY ENVIRONMENTAL
INSURANCE POLICIES
None.
EXHIBIT K
[Reserved]
EXHIBIT L
[Reserved]
EXHIBIT M-1
FORM OF PURCHASE OPTION NOTICE
[Date]
[Purchase Option Holder]
Re: Xxxxxxx Xxxxx Mortgage Trust 2005-LC1
Commercial Mortgage Pass-Through Certificates, Series 2005-LC1
Ladies and Gentlemen:
You are the holder of an assignable option (the "Purchase Option")
to purchase Mortgage Loan number ___ from the Trust Fund, pursuant to Section
3.18 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement") dated as of December 1, 2005, by and among Xxxxxxx Xxxxx Mortgage
Investors, Inc., as depositor, GMAC Commercial Mortgage Corporation, as master
servicer, LNR Partners, Inc., as special servicer, Xxxxx Fargo Bank, N.A., as
trustee, and LaSalle Bank National Association, as certificate administrator.
Capitalized terms used herein and not otherwise defined shall have the meaning
set forth in the Pooling and Servicing Agreement.
This notice is to inform you that the exercise of your Purchase
Option in respect of Mortgage Loan number ___, pursuant to your Purchase Option
Notice dated , a copy of which is attached hereto, is effective. Pursuant to
Section 3.18 of the Pooling and Servicing Agreement and your Purchase Option
Notice, closing of [your] [ 's] acquisition of Mortgage Loan number shall occur
within ten (10) Business Days of your receipt of this notice, at the place and
in the manner described below.
[Describe closing mechanics. Describe documents or instruments
required to be prepared by Purchase Option Holder in connection with assignment
and release of the related Mortgage Loan.]
Upon payment of the Option Price, Mortgage Loan number and the
related Mortgaged Property will be released and the related Mortgage Loan File
will be delivered to [you] [ ] or at [your] [_________'s] direction.
Drafts of such instruments of transfer or assignment, in each case
without recourse, reasonably necessary to vest in [you] or [ ] the ownership of
Mortgage Loan number together with [describe other documents or instruments
reasonably required to consummate the purchase] should be delivered to [ ] for
review as soon as is practicable.
[Provide Special Servicer contact information.]
Please acknowledge receipt of this letter by signing the enclosed
copy and return it to my attention.
Sincerely, ________________________________
By: ________________________________
Name: ________________________________
Title: ________________________________
Purchase Option Holder's Acknowledgment
By: ________________________________________
Name: ________________________________________
Title: ________________________________________
Date: ________________________________________
EXHIBIT M-2
FORM OF PURCHASE OPTION ASSIGNMENT BY
THE SPECIAL SERVICER
THIS ASSIGNMENT OF PURCHASE OPTION (this "Assignment") is made effective
as of [________] by and between LNR Partners, Inc. ("Assignor") and
[_______________] ("Assignee") in connection with (i) the Pooling and Servicing
Agreement dated as of December 1, 2005 (the "Agreement"), by and among Xxxxxxx
Xxxxx Mortgage Investors, Inc., as Depositor, GMAC Commercial Mortgage
Corporation, as Master Servicer, Assignor as Special Servicer, Xxxxx Fargo Bank,
N.A. as Trustee (the "Trustee"), and LaSalle Bank National Association, as
certificate administrator, with respect to the Xxxxxxx Xxxxx Mortgage Trust
2005-LC1, Commercial Mortgage Pass-Through Certificates, Series 2005-LC1 (the
"Series 2005-LC1 Securitization"), and (ii) the transfer of the Loan (defined
below) to Assignee.
Capitalized terms used but not otherwise defined in this Assignment shall
have the respective meanings assigned to them in the Agreement.
1. The Trust is the owner of a Mortgage Loan in the original principal
amount of $[_______] that is included in the Series 2005-LC1 Securitization and
is secured by the Mortgaged Property commonly known as [_______________________]
(the "Loan"). The Loan is a Defaulted Mortgage Loan under the Agreement and is
being serviced and administered by Assignor in its capacity as Special Servicer.
2. Assignor, (i) pursuant to Section 3.18(c) of the Agreement, is the
deemed assignee of the Purchase Option with respect to such Loan [for a 15-day
period], (ii) pursuant to Section 3.18(c) of the Agreement, has the
unconditional right to assign the Purchase Option to a third party, and (iii)
has given all notices, if any, required to be given to any Person in order to
assign the Purchase Option and for the assignee thereof to exercise the Purchase
Option and purchase the Loan pursuant thereto.
3. Assignee intends to purchase the Loan in compliance with the Agreement
and has requested that Assignor assign the Purchase Option to Assignee, and
Assignor desires to assign the Purchase Option to Assignee, pursuant to the
terms and conditions of this Assignment.
NOW THEREFORE, the parties agree as follows:
For good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, Assignor hereby assigns, transfers and conveys to
Assignee all of Assignor's right, title and interest in and to the Purchase
Option with respect to the Loan under Section 3.18 of the Agreement without any
representation or warranty of any kind whatsoever.
This Assignment is being executed by Assignee and Assignor and shall be
binding upon Assignee, Assignor and the respective permitted successors and
assigns of each of them, for the uses and purposes set forth above and shall be
effective as of the date set forth above. This Assignment may be executed in any
number of counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same instrument. Nothing in this
Assignment shall be deemed to create or imply any right or benefit in any person
other than Assignee, Assignor or their respective permitted successors and
assigns.
IN WITNESS WHEREOF, this Assignment has been executed by the parties as of
the date first set forth above.
ASSIGNOR: LNR PARTNERS, INC.
By:_________________________________
Name:_______________________________
Title:______________________________
ASSIGNEE: [ASSIGNEE]
By:_________________________________
Name:_______________________________
Title:______________________________
ASSIGNEE CONTACT INFORMATION:
Address:______________________________
______________________________________
______________________________________
Telephone No.:________________________
Facsimile:____________________________
EXHIBIT M-3
FORM OF PURCHASE OPTION ASSIGNMENT
BY PLURALITY SUBORDINATE CERTIFICATEHOLDER
THIS ASSIGNMENT OF PURCHASE OPTION (this "Assignment") is made effective
as of [________] by and between Plurality Subordinate Certificateholder(s)
("Assignor") and [_______________] ("Assignee") in connection with (i) the
Pooling and Servicing Agreement dated as of December 1, 2005 (the "Agreement"),
by and among Xxxxxxx Xxxxx Mortgage Investors, Inc., as Depositor, GMAC
Commercial Mortgage Corporation, as Master Servicer, LNR Partners, Inc., as
Special Servicer, Xxxxx Fargo Bank, N.A., as trustee (the "Trustee"), and
LaSalle Bank National Association, as certificate administrator, with respect to
the Xxxxxxx Xxxxx Mortgage Trust 2005-LC1, Commercial Mortgage Pass-Through
Certificates, Series 2005-LC1 (the "Series 2005-LC1 Securitization"), and (ii)
the transfer of the Loan (defined below) to Assignee.
Capitalized terms used but not otherwise defined in this Assignment shall
have the respective meanings assigned to them in the Agreement.
1. The Trust is the owner of a Mortgage Loan in the original principal
amount of $[_______] that is included in the Series 2005-LC1
Securitization and is secured by the Mortgaged Property commonly
known as [___________________________] (the "Loan"). The Loan is a
Defaulted Mortgage Loan under the Agreement and is being serviced
and administered by LNR Partners, Inc. in its capacity as Special
Servicer.
2. Assignor (i) is the Plurality Subordinate Certificateholder under
the Agreement, (ii) pursuant to Section 3.18(c) of the Agreement,
holds a Purchase Option with respect to the Loan, (iii) pursuant to
Section 3.18 of the Agreement, has the unconditional right to assign
the Purchase Option to a third party, and (iv) has given all
notices, if any, required to be given to any Person in order to
assign the Purchase Option and for the assignee thereof to exercise
the Purchase Option and purchase the Loan pursuant thereto.
3. Assignee intends to purchase the Loan in compliance with the
Agreement and has requested that Assignor assign the Purchase Option
to Assignee, and Assignor desires to assign the Purchase Option to
Assignee, pursuant to the terms and conditions of this Assignment.
NOW THEREFORE, the parties agree as follows:
For good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, Assignor hereby assigns, transfers and conveys to
Assignee all of Assignor's right, title and interest in and to the Purchase
Option with respect to the Loan under Section 3.18 of the Agreement without any
representation or warranty of any kind whatsoever.
This Assignment is being executed by Assignee and Assignor and shall be
binding upon Assignee, Assignor and the respective permitted successors and
assigns of each of them, for the uses and purposes set forth above and shall be
effective as of the date set forth above. This Assignment may be executed in any
number of counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same instrument. Nothing in this
Assignment shall be deemed to create or imply any right or benefit in any person
other than Assignee, Assignor or their respective permitted successors and
assigns.
IN WITNESS WHEREOF, this Assignment has been executed by the parties as of
the date first set forth above.
ASSIGNOR: PLURALITY SUBORDINATE
CERTIFICATEHOLDER
By:
Name:_______________________________
Title:______________________________
ASSIGNEE: [ASSIGNEE]
By:_________________________________
Name:_______________________________
Title:______________________________
ASSIGNEE CONTACT INFORMATION:
Address:______________________________
______________________________________
______________________________________
Telephone No.:________________________
Facsimile:____________________________
EXHIBIT N
FORM OF DISTRIBUTION DATE STATEMENT
Xxxxxxx Xxxxx Mortgage Trust 2005-LC1
Commercial Mortgage Pass-Through Certificates
Series 2005-LC1
ABN AMRO Statement Date: 01/12/2006
LaSalle Bank N.A. Payment Date: 01/12/2006
000 X. XxXxxxx Xxxxxx Xxxxx 0000 Prior Payment: N/A
Xxxxxxx, XX 00000 Next Payment: 02/13/2006
Record Date: 12/30/2005
Administrator: Analyst:
ABN AMRO Acct: XXXXXX.X
Reporting Package Table of Contents
--------------------------------------------------------------------------------
Issue Id: xxxxxxxx
Monthly Data File Name: xxxxxxxx_YYYYMM_3.zip
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Page(s)
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REMIC Certificate Report
Bond Interest Reconciliation
Cash Reconciliation Summary
15 Month Historical Loan Status Summary
15 Month Historical Payoff/Loss Summary
Historical Collateral Level Prepayment Report
Delinquent Loan Detail
Mortgage Loan Characteristics
Loan Level Detail
Specially Serviced Report
Modified Loan Detail
Realized Loss Detail
Appraisal Reduction Detail
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Closing Date: 12/xx/2005
First Payment Date: 01/15/2006
Assumed Final Payment Date: XX/XX/XXXX
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Parties to the Transaction
--------------------------------------------------------------------------------
Depositor: Xxxxxxx Xxxxx Mortgage Investors, Inc.
Underwriters: Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated/Countrywide
Securities Corpration/LaSalle Financial Services, Inc./Deutsche Bank Securities/
X.X. Xxxxxx Securities, Inc./Xxxxxx Xxxxxxx & Co., Inc.
Master Servicer: GMAC Commercial Mortgage Corporation
Special Servicer: LNR Partners, Inc.
Rating Agency: Standard & Poor's Ratings Services/Xxxxx'x Investors Service
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Information is available for this issue from the following sources
--------------------------------------------------------------------------------
LaSalle Web Site xxx.xxxxxxxx.xxx
Servicer Website
LaSalle Factor Line (000) 000-0000
--------------------------------------------------------------------------------
Xxxxxxx Xxxxx Mortgage Trust 2005-LC1
Commercial Mortgage Pass-Through Certificates
Series 2005-LC1
ABN AMRO Statement Date: 01/12/2006
LaSalle Bank N.A. Payment Date: 01/12/2006
Prior Payment: N/A
Next Payment: 02/13/2006
Record Date: 12/30/2005
WAC:
WA Life Term:
WA Amort Term: ABN AMRO Acct: XXXXXX.X
Current Index:
Next Index: REMIC Certificate Report
Original Opening Principal Principal Negative Closing Interest Interest Pass-Through
Class Face Value (1) Balance Payment Adj. or Loss Amortization Balance Payment (2) Adjustment Rate
CUSIP Per 1,000 Per 1,000 Per 1,000 Per 1,000 Per 1,000 Per 1,000 Per 1,000 Per 1,000 Next Rate (3)
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
------------------------------------------------------------------------------------------------------------------------------------
Total P&I Payment 0.00
=======================
Notes: (1) N denotes notional balance not included in total
(2) Accrued Interest plus/minus Interest Adjustment minus Deferred
Interest equals Interest Payment
(3) Estimated
Xxxxxxx Xxxxx Mortgage Trust 2005-LC1
Commercial Mortgage Pass-Through Certificates
Series 2005-LC1
ABN AMRO Statement Date: 01/12/2006
LaSalle Bank N.A. Payment Date: 01/12/2006
Prior Payment: N/A
Next Payment: 02/13/2006
Record Date: 12/30/2005
ABN AMRO Acct: XXXXXX.X
Bond Interest Reconciliation
Deductions
----------------------------------
Accrual Accrued Deferred &
-------------- Pass Thru Certificate Allocable Accretion Interest
Class Method Days Rate Interest PPIS Interest Losses/Exp
-------------------------------------------------------------------------------------
----------- --------- ---------- --------
0.00 0.00 0.00 0.00
Additions
----------------------------------------------------
Prior Int Accrual Prepay- Other
Int. Short- on prior ment Interest
Class falls Due Shortfall (3) Penalties Proceeds(1)
------------------------------------------------------------
----------- --------- -----------
0.00 0.00 0.00
Remaining
Distributable Interest Current Period Outstanding Credit Support
Certificate Payment (Shortfall)/ Interest ---------------------
Class Interest (2) Amount Recovery Shortfalls Original Current(4)
---------------------------------------------------------------------------------------
------------- -------- -----------
0.00 0.00 0.00
(1) Other Interest Proceeds are additional interest amounts specifically
allocated to the bond(s) and used in determining the Distributable
Interest of the bonds.
(2) Accrued - Deductions + Additional Interest.
(3) Where applicable.
(4) Determined as follows: (A) the ending balance of all the classes less (B)
the sum of (i) the ending balance of the class and (ii) the ending balance
of all classes which are not subordinate to the class divided by (A).
Xxxxxxx Xxxxx Mortgage Trust 2005-LC1
Commercial Mortgage Pass-Through Certificates
Series 2005-LC1
ABN AMRO Statement Date: 01/12/2006
LaSalle Bank N.A. Payment Date: 01/12/2006
Prior Payment: N/A
Next Payment: 02/13/2006
Record Date: 12/30/2005
ABN AMRO Acct: XXXXXX.X
Cash Reconciliation Summary
Interest Summary
--------------------------------
Current Scheduled Interest
Less Deferred Interest
Less PPIS Reducing Scheduled Int
Plus Gross Advance Interest
Less ASER Interest Adv Reduction
Less Other Interest Not Advanced
Less Other Adjustment
--------------------------------------------------------------------------------
Total
--------------------------------------------------------------------------------
Unscheduled Interest:
--------------------------------------------------------------------------------
Prepayment Penalties
Yield Maintenance Penalties
Other Interest Proceeds
--------------------------------------------------------------------------------
Total
--------------------------------------------------------------------------------
Less Fees Paid to Servicer
Less Fee Strips Paid by Servicer
--------------------------------------------------------------------------------
Less Fees & Expenses Paid By/To Servicer
--------------------------------------------------------------------------------
Special Servicing Fees
Workout Fees
Liquidation Fees
Interest Due Serv on Advances
Non Recoverable Advances
Misc. Fees & Expenses
--------------------------------------------------------------------------------
Plus Trustee Fees Paid By Servicer
--------------------------------------------------------------------------------
Total Unscheduled Fees & Expenses
--------------------------------------------------------------------------------
Total Interest Due Trust
--------------------------------------------------------------------------------
Less Fees & Expenses Paid By/To Trust
--------------------------------------------------------------------------------
Trustee Fee
Fee Strips
Misc. Fees
Interest Reserve Withholding
Plus Interest Reserve Deposit
--------------------------------------------------------------------------------
Total
--------------------------------------------------------------------------------
Total Interest Due Certs
Principal Summary
--------------------------------
Scheduled Principal:
--------------------
Current Scheduled Principal
Advanced Scheduled Principal
--------------------------------------------------------------------------------
Scheduled Principal
--------------------------------------------------------------------------------
Unscheduled Principal:
----------------------
Curtailments
Advanced Scheduled Principal
Liquidation Proceeds
Repurchase Proceeds
Other Principal Proceeds
--------------------------------------------------------------------------------
Total Unscheduled Principal
--------------------------------------------------------------------------------
Remittance Principal
--------------------------------------------------------------------------------
Remittance P&I Due Trust
--------------------------------------------------------------------------------
Remittance P&I Due Certs
--------------------------------------------------------------------------------
Pool Balance Summary
--------------------------------
Balance Count
------- -----
Beginning Pool
Scheduled Principal
Unscheduled Principal
Deferred Interest
Liquidations
Repurchases
--------------------------------------------------------------------------------
Ending Pool
Servicing Fee Summary
--------------------------------
Current Servicing Fees
Plus Fees Advanced for PPIS
Less Reduction for PPIS
Plus Unscheduled Servicing Fees
--------------------------------------------------------------------------------
Total Servicing Fees
PPIS Summary
--------------------------------
Gross PPIS
Reduced by PPIE
Reduced by Shortfalls in Fees
Reduced by Other Amounts
--------------------------------------------------------------------------------
PPIS Reducing Scheduled Interest
--------------------------------------------------------------------------------
PPIS Reducing Servicing Fee
--------------------------------------------------------------------------------
PPIS Due Certificate
Advance Summary (Advance Made by Servicer)
------------------------------------------
Principal Interest
--------------------------------------------------------------------------------
Prior Outstanding
Plus Current Period
Less Recovered
Less Non Recovered
--------------------------------------------------------------------------------
Ending Outstanding
Xxxxxxx Xxxxx Mortgage Trust 2005-LC1
Commercial Mortgage Pass-Through Certificates
Series 2005-LC1
ABN AMRO Statement Date: 01/12/2006
LaSalle Bank N.A. Payment Date: 01/12/2006
Prior Payment: N/A
Next Payment: 02/13/2006
Record Date: 12/30/2005
ABN AMRO Acct: XXXXXX.X
Asset Backed Facts ~ 15 Month Historical Loan Status Summary
Delinquency Aging Categories
-------------------------------------------------------------------------------------------------
Delinq 1 Month Delinq 2 Months Delinq 3+ Months Foreclosure REO
Distribution ----------------- ----------------- ----------------- ----------------- -----------------
Date # Balance # Balance # Balance # Balance # Balance
------------ ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
01/12/06
------------ ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
------------ ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
------------ ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
------------ ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
Special Event Categories (1)
----------------------------------------------------------
Modifications Specially Serviced Bankruptcy
Distribution ----------------- ------------------ -----------------
Date # Balance # Balance # Balance
------------ ------- ------- ------- ------- ------- -------
01/12/06
------------ ------- ------- ------- ------- ------- -------
------------ ------- ------- ------- ------- ------- -------
------------ ------- ------- ------- ------- ------- -------
------------ ------- ------- ------- ------- ------- -------
(1) Modification, Specially Serviced & Bankruptcy Totals are Included in the
Appropriate Delinquency Aging Category.
Xxxxxxx Xxxxx Mortgage Trust 2005-LC1
Commercial Mortgage Pass-Through Certificates
Series 2005-LC1
ABN AMRO Statement Date: 01/12/2006
LaSalle Bank N.A. Payment Date: 01/12/2006
Prior Payment: N/A
Next Payment: 02/13/2006
Record Date: 12/30/2005
ABN AMRO Acct: XXXXXX.X
Asset Backed Facts ~ 15 Month Historical Payoff/Loss Summary
Ending Pool (1) Payoffs (2) Penalties Appraisal Reduct. (2)
Distribution ----------------- ----------------- ----------------- ---------------------
Date # Balance # Balance # Amount # Balance
------------ ------- ------- ------- ------- ------- ------- ------- -------
01/12/06
------------ ------- ------- ------- ------- ------- ------- ------- -------
------------ ------- ------- ------- ------- ------- ------- ------- -------
------------ ------- ------- ------- ------- ------- ------- ------- -------
------------ ------- ------- ------- ------- ------- ------- ------- -------
Liquidations (2) Realized Losses (2) Remaining Term Curr Weighted Avg.
Distribution ----------------- ------------------- ----------------- ------------------
Date # Balance # Amount Life Amort. Coupon Remit
------------ ------- ------- ------- ------- ------- ------- ------- -------
01/12/06
------------ ------- ------- ------- ------- ------- ------- ------- -------
------------ ------- ------- ------- ------- ------- ------- ------- -------
------------ ------- ------- ------- ------- ------- ------- ------- -------
------------ ------- ------- ------- ------- ------- ------- ------- -------
(1) Percentage based on pool as of cutoff.
(2) Percentage based on pool as of beginning of period.
Xxxxxxx Xxxxx Mortgage Trust 2005-LC1
Commercial Mortgage Pass-Through Certificates
Series 2005-LC1
ABN AMRO Statement Date: 01/12/2006
LaSalle Bank N.A. Payment Date: 01/12/2006
Prior Payment: N/A
Next Payment: 02/13/2006
Record Date: 12/30/2005
ABN AMRO Acct: XXXXXX.X
Historical Collateral Level Prepayment Report
Disclosure Payoff Initial Payoff Penalty Prepayment Maturity Property Geographic
Control # Period Balance Type Amount Amount Date Date Type Location
---------- ------ ------- ---- ------ ------- ---------- -------- -------- ----------
Current ------ -------
Cumulative 0 0
Xxxxxxx Xxxxx Mortgage Trust 2005-LC1
Commercial Mortgage Pass-Through Certificates
Series 2005-LC1
ABN AMRO Statement Date: 01/12/2006
LaSalle Bank N.A. Payment Date: 01/12/2006
Prior Payment: N/A
Next Payment: 02/13/2006
Record Date: 12/30/2005
ABN AMRO Acct: XXXXXX.X
Delinquent Loan Detail
Paid Outstanding Out. Property Special
Disclosure Thru Current P&I P&I Protection Advance Servicer Foreclosure Bankruptcy REO
Control # Date Advance Advances** Advances Description (1) Transfer Date Date Date Date
-------------- ---- ----------- ----------- ------------- --------------- ------------- ----------- ---------- ----
A. P&I Advance - Loan in Grace Period
B. P&I Advance - Late Payment but < one month delinq
1. P&I Advance - Loan delinquent 1 month
2. P&I Advance - Loan delinquent 2 months
3. P&I Advance - Loan delinquent 3 months or More
4. Matured Balloon/Assumed Scheduled Payment
5. Prepaid in Full
6. Specially Serviced
5. Prepaid in Full
6. Specially Serviced
7. P&I Advance (Foreclosure)
9. P&I Advance (REO)
9. REO
10. XXX
00. Modification
** Outstanding P&I Advances include the current period P&I Advance
Xxxxxxx Xxxxx Mortgage Trust 2005-LC1
Commercial Mortgage Pass-Through Certificates
Series 2005-LC1
ABN AMRO Statement Date: 01/12/2006
LaSalle Bank N.A. Payment Date: 01/12/2006
Prior Payment: N/A
Next Payment: 02/13/2006
Record Date: 12/30/2005
ABN AMRO Acct: XXXXXX.X
Mortgage Loan Characteristics
Distribution of Principal Balances
Weighted Average
Current Scheduled # of Scheduled % of --------------------
Balances Loans Balance Balance Term Coupon DSCR
------------------------------ ----- --------- ------- ---- ------ ----
------------------------------ ----- --------- ------- ---- ------ ----
0 0 0.00%
------------------------------ ----- --------- ------- ---- ------ ----
Average Scheduled Balance
Maximum Scheduled Balance
Minimum Scheduled Balance
Distribution of Remaining Term (Fully Amortizing)
Weighted Average
Fully Amortizing # of Scheduled % of --------------------
Mortgage Loans Loans Balance Balance Term Coupon DSCR
------------------------------ ----- --------- ------- ---- ------ ----
------------------------------ ----- --------- ------- ---- ------ ----
0 0 0.00%
------------------------------ ----- --------- ------- ---- ------ ----
Minimum Remaining Term
Maximum Remaining Term
Distribution of Mortgage Interest Rates
Weighted Average
Current Mortgage # of Scheduled % of --------------------
Interest Rate Loans Balance Balance Term Coupon DSCR
------------------------------ ----- --------- ------- ---- ------ ----
------------------------------ ----- --------- ------- ---- ------ ----
0 0 0.00%
------------------------------ ----- --------- ------- ---- ------ ----
Minimum Mortgage Interest Rate 10.0000%
Maximum Mortgage Interest Rate 10.0000%
Distribution of Remaining Term (Balloon)
Weighted Average
Balloon # of Scheduled % of --------------------
Mortgage Loans Loans Balance Balance Term Coupon DSCR
------------------------------ ----- --------- ------- ---- ------ ----
0 to 60
61 to 120
121 to 180
181 to 240
241 to 360
------------------------------ ----- --------- ------- ---- ------ ----
0 0 0.00%
------------------------------ ----- --------- ------- ---- ------ ----
Minimum Remaining Term 0
Maximum Remaining Term 0
Xxxxxxx Xxxxx Mortgage Trust 2005-LC1
Commercial Mortgage Pass-Through Certificates
Series 2005-LC1
ABN AMRO Statement Date: 01/12/2006
LaSalle Bank N.A. Payment Date: 01/12/2006
Prior Payment: N/A
Next Payment: 02/13/2006
Record Date: 12/30/2005
ABN AMRO Acct: XXXXXX.X
Mortgage Loan Characteristics
Distribution of DSCR (Current)
Debt Service # of Scheduled % of
Coverage Ratio Loans Balance Balance WAMM WAC DSCR
----------------------------- ----- --------- ------- ---- --- ----
----------------------------- ----- --------- ------- ---- --- ----
0 0 0.00%
----------------------------- ----- --------- ------- ---- --- ----
Maximum DSCR 0.000
Minimum DSCR 0.000
Distribution of DSCR (Cutoff)
Debt Service # of Scheduled % of
Coverage Ratio Loans Balance Balance WAMM WAC DSCR
----------------------------- ----- --------- ------- ---- --- ----
----------------------------- ----- --------- ------- ---- --- ----
0 0 0.00%
----------------------------- ----- --------- ------- ---- --- ----
Maximum DSCR 0.00
Minimum DSCR 0.00
Geographic Distribution
# of Scheduled % of
Geographic Location Loans Balance Balance WAMM WAC DSCR
----------------------------- ----- --------- ------- ---- --- ----
----------------------------- ----- --------- ------- ---- --- ----
0 0.00%
----------------------------- ----- --------- ------- ---- --- ----
Xxxxxxx Xxxxx Mortgage Trust 2005-LC1
Commercial Mortgage Pass-Through Certificates
Series 2005-LC1
ABN AMRO Statement Date: 01/12/2006
LaSalle Bank N.A. Payment Date: 01/12/2006
Prior Payment: N/A
Next Payment: 02/13/2006
Record Date: 12/30/2005
ABN AMRO Acct: XXXXXX.X
Mortgage Loan Characteristics
Distribution of Property Types
# of Scheduled % of
Property Types Loans Balance Balance WAMM WAC DSCR
----------------------------- ----- --------- ------- ---- --- ----
----------------------------- ----- --------- ------- ---- --- ----
0 0 0.00%
----------------------------- ----- --------- ------- ---- --- ----
Distribution of Amortization Type
# of Scheduled % of
Amortization Type Loans Balance Balance WAMM WAC DSCR
----------------------------- ----- --------- ------- ---- --- ----
----------------------------- ----- --------- ------- ---- --- ----
----------------------------- ----- --------- ------- ---- --- ----
Distribution of Loan Seasoning
# of Scheduled % of
Number of Years Loans Balance Balance WAMM WAC DSCR
----------------------------- ----- --------- ------- ---- --- ----
----------------------------- ----- --------- ------- ---- --- ----
0 0 0.00%
----------------------------- ----- --------- ------- ---- --- ----
Distribution of Year Loans Maturing
# of Scheduled % of
Year Loans Balance Balance WAMM WAC DSCR
----------------------------- ----- --------- ------- ---- --- ----
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014 & Longer
----------------------------- ----- --------- ------- ---- --- ----
0 0 0.00%
----------------------------- ----- --------- ------- ---- --- ----
Xxxxxxx Xxxxx Mortgage Trust 2005-LC1
Commercial Mortgage Pass-Through Certificates
Series 2005-LC1
ABN AMRO Statement Date: 01/12/2006
LaSalle Bank N.A. Payment Date: 01/12/2006
Prior Payment: N/A
Next Payment: 02/13/2006
Record Date: 12/30/2005
ABN AMRO Acct: XXXXXX.X
Adjustable Rate Mortgage Loan Characteristics
Distribution of Maximum Rates
# of Scheduled % of
Maximum Rates Loans Balance Balance WAMM WAC DSCR
----------------------------- ----- --------- ------- ---- --- ----
----------------------------- ----- --------- ------- ---- --- ----
----------------------------- ----- --------- ------- ---- --- ----
Distribution of Minimum Rates
# of Scheduled % of
Minimum Rates Loans Balance Balance WAMM WAC DSCR
----------------------------- ----- --------- ------- ---- --- ----
----------------------------- ----- --------- ------- ---- --- ----
----------------------------- ----- --------- ------- ---- --- ----
Distribution of Payment Adjustment
Payment Adjustment # of Scheduled % of
Frequency Loans Balance Balance WAMM WAC DSCR
----------------------------- ----- --------- ------- ---- --- ----
----------------------------- ----- --------- ------- ---- --- ----
----------------------------- ----- --------- ------- ---- --- ----
Distribution of Indices of Mortgage Loans
# of Scheduled % of
Indices Loans Balance Balance WAMM WAC DSCR
----------------------------- ----- --------- ------- ---- --- ----
----------------------------- ----- --------- ------- ---- --- ----
----------------------------- ----- --------- ------- ---- --- ----
Distribution of Mortgage Loan Margins
# of Scheduled % of
Mortgage Loan Margins Loans Balance Balance WAMM WAC DSCR
----------------------------- ----- --------- ------- ---- --- ----
----------------------------- ----- --------- ------- ---- --- ----
----------------------------- ----- --------- ------- ---- --- ----
Distribution of Rate Adjustment
Interest Adjustment # of Scheduled % of
Frequency Loans Balance Balance WAMM WAC DSCR
----------------------------- ----- --------- ------- ---- --- ----
----------------------------- ----- --------- ------- ---- --- ----
----------------------------- ----- --------- ------- ---- --- ----
Xxxxxxx Xxxxx Mortgage Trust 2005-LC1
Commercial Mortgage Pass-Through Certificates
Series 2005-LC1
ABN AMRO Statement Date: 01/12/2006
LaSalle Bank N.A. Payment Date: 01/12/2006
Prior Payment: N/A
Next Payment: 02/13/2006
Record Date: 12/30/2005
ABN AMRO Acct: XXXXXX.X
Loan Level Detail
Operating Ending
Disclosure Property Statement Maturity Principal Note
Control # Grp Type State DSCR NOI Date Date Balance Rate
---------- --- -------- ----- ---- --- --------- -------- --------- ----
---------- --- -------- ----- ---- --- --------- -------- --------- ----
W/Avg 0.00 0 0
---------- --- -------- ----- ---- --- --------- -------- --------- ----
Spec. Loan Prepayment
Disclosure Scheduled Mod. Serv ASER Status -----------------------
Control # P&I Flag Flag Flag Code(1) Amount Penalty Date
---------- --------- ---- ----- ---- ------- ------ ------- ----
---------- --------- ---- ----- ---- ------- ------ ------- ----
0 0 0
---------- --------- ---- ----- ---- ------- ------ ------- ----
* NOI and DSCR, if available and reportable under the terms of the Pooling
and Servicing Agreement, are based on information obtained from the
related borrower, and no other party to the agreement shall be held liable
for the accuracy or methodology used to determine such figures.
(1) Legend: A. P&I Adv - in Grace Period
B. P&I Adv - < one month delinq
1. P&I Adv - delinquent 1 month
2. P&I Adv - delinquent 2 months
3. P&I Adv - delinquent 3+ months
4. Mat. Balloon/Assumed P&I
5. Prepaid in Full
6. Specially Serviced
7. Foreclosure
8. Bankruptcy
9. REO
10. XXX
00. Modification
Xxxxxxx Xxxxx Mortgage Trust 2005-LC1
Commercial Mortgage Pass-Through Certificates
Series 2005-LC1
ABN AMRO Statement Date: 01/12/2006
LaSalle Bank N.A. Payment Date: 01/12/2006
Prior Payment: N/A
Next Payment: 02/13/2006
Record Date: 12/30/2005
ABN AMRO Acct: XXXXXX.X
Specially Serviced (Part I) ~ Loan Detail
Balance
Disclosure Transfer Loan Status ------------------ Note Maturity
Control # Date Code (1) Scheduled Actual Rate Date
------------------------- -------- ----------- --------- ------ ---- --------
Remaining Term
Disclosure --------------- Property NOI
Control # Life Amort. Type State NOI DSCR Date
------------------------- ---- ------ -------- ----- --- ---- ----
(1) Legend: A. P&I Adv - in Grace Period
B. P&I Adv - < one month delinq
1. P&I Adv - delinquent 1 month
2. P&I Adv - delinquent 2 months
3. P&I Adv - delinquent 3+ months
4. Mat. Balloon/Assumed P&I
5. Prepaid in Full
6. Specially Serviced
7. Foreclosure
8. Bankruptcy
9. REO
10. XXX
00. Modification
Xxxxxxx Xxxxx Mortgage Trust 2005-LC1
Commercial Mortgage Pass-Through Certificates
Series 2005-LC1
ABN AMRO Statement Date: 01/12/2006
LaSalle Bank N.A. Payment Date: 01/12/2006
Prior Payment: N/A
Next Payment: 02/13/2006
Record Date: 12/30/2005
ABN AMRO Acct: XXXXXX.X
Specially Serviced Loan Detail (Part II) ~ Servicer Comments
Disclosure Resolution
Control # Strategy Comments
---------- ---------- ------------------------------------------------------
Xxxxxxx Xxxxx Mortgage Trust 2005-LC1
Commercial Mortgage Pass-Through Certificates
Series 2005-LC1
ABN AMRO Statement Date: 01/12/2006
LaSalle Bank N.A. Payment Date: 01/12/2006
Prior Payment: N/A
Next Payment: 02/13/2006
Record Date: 12/30/2005
ABN AMRO Acct: XXXXXX.X
Modified Loan Detail
Cutoff Modified
Disclosure Modification Maturity Maturity Modification
Control # Date Date Date Description
---------- ------------ -------- -------- ------------------------------
Xxxxxxx Xxxxx Mortgage Trust 2005-LC1
Commercial Mortgage Pass-Through Certificates
Series 2005-LC1
ABN AMRO Statement Date: 01/12/2006
LaSalle Bank N.A. Payment Date: 01/12/2006
Prior Payment: N/A
Next Payment: 02/13/2006
Record Date: 12/30/2005
ABN AMRO Acct: XXXXXX.X
Realized Loss Detail
Gross Net
Proceeds Proceeds
as a % as a %
Beginning of Aggregate Net of
Disclosure Appraisal Appraisal Scheduled Gross Sched Liquidation Liquidation Sched. Realized
Period Control # Date Value Balance Proceeds Principal Expenses * Proceeds Balance Loss
-------------------- ---------- --------- --------- --------- -------- --------- ----------- ----------- -------- --------
Current Total 0.00 0.00 0.00 0.00 0.00
Cumulative 0.00 0.00 0.00 0.00 0.00
* Aggregate liquidation expenses also include outstanding P&I advances and
unpaid servicing fees, unpaid trustee fees, etc.
Xxxxxxx Xxxxx Mortgage Trust 2005-LC1
Commercial Mortgage Pass-Through Certificates
Series 2005-LC1
ABN AMRO Statement Date: 01/12/2006
LaSalle Bank N.A. Payment Date: 01/12/2006
Prior Payment: N/A
Next Payment: 02/13/2006
Record Date: 12/30/2005
ABN AMRO Acct: XXXXXX.X
Appraisal Reduction Detail
Remaining Term
Disclosure Appraisal Scheduled ARA Current P&I Note Maturity --------------
Control # Red. Date Balance Amount Advance ASER Rate Date Life Amort.
-------------------- --------- --------- ------ ----------- ---- ---- -------- ---- ------
Appraisal
Disclosure Property ------------
Control # Type State DSCR Value Date
-------------------- -------- ----- ---- ----- ----
EXHIBIT O
FORM OF XXXXXXXX-XXXXX CERTIFICATION
BY THE DEPOSITOR
Re: Xxxxxxx Xxxxx Mortgage Trust 2005-LC1 (the "Trust"), Commercial Mortgage
Pass-Through Certificates, Series 2005-LC1
I, [identify the certifying individual], a [title] of Xxxxxxx Xxxxx
Mortgage Investors, Inc., the depositor (the "Depositor") into the
above-referenced Trust, certify that (capitalized terms used herein but not
defined shall have the meanings assigned to such terms in the Pooling and
Servicing Agreement):
1. I have reviewed the annual report on Form 10-K for the fiscal year
[___] (the "Annual Report"), and all reports on Form 8-K containing distribution
or servicing reports under the pooling and servicing agreement dated as of
December 1, 2005 and related to the captioned commercial mortgage pass-through
certificates (the "Pooling and Servicing Agreement") filed in respect of periods
included in the year covered by the Annual Report (collectively with the Annual
Report, the "Reports"), of the Trust;
2. Based on my knowledge, the information in the Reports, taken as a
whole, does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of the
last day of the period covered by the Annual Report;
3. Based on my knowledge, the distribution or servicing information
required to be provided to the Trustee by the Master Servicer under the Pooling
and Servicing Agreement for inclusion in these reports is included in the
Reports;
4. Based on my knowledge and upon the annual compliance statement included
in the Annual Report and required to be delivered to the Trustee in accordance
with the terms of the Pooling and Servicing Agreement, and except as disclosed
in the Reports, the Master Servicer has fulfilled its obligations under the
Pooling and Servicing Agreement; and
5. The Reports disclose all significant deficiencies relating to the
compliance of the Master Servicer 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 the Reports.
In giving the certifications set forth above, I have reasonably relied on
information provided to me by the following unaffiliated parties: GMAC
Commercial Mortgage Corporation, as Master Servicer, LNR Partners, Inc., as
Special Servicer, Xxxxx Fargo Bank, N.A., as Trustee, and LaSalle Bank National
Association, as Certificate Administrator.
Date: _________________________
Xxxxxxx Xxxxx Mortgage Investors, Inc.
________________________________
[name of certifying individual]
[title of certifying individual]
EXHIBIT P-1
SERVICER CERTIFICATION TO DEPOSITOR
Note: Actual certification would be modified to meet the requirements of each
Pooling and Servicing Agreement or Subservicing Agreement.
Re: ____________________________ as the master servicer (the "Servicer"),
with respect to ____________________________ Commercial Mortgage Pass-Through
Certificates, Series ______________, issued pursuant to that certain Pooling
and Servicing Agreement, dated as of ________________, 20 ____ (the "Pooling
and Servicing Agreement"), by and among ___________________, as depositor,
the Servicer, as master servicer, ___________________as special servicer,
and __________________, as trustee (the "Trustee").
I, __________________________, a ____________________________ of the
Servicer, on behalf of the Servicer, certify to the Depositor and its officers,
directors and affiliates, and with the knowledge and intent that they will rely
upon this certification, that:
1. Based on our knowledge, with respect to the period ending December 31, 20__
(the "Relevant Period"), all required reportable information (the "Servicing
Reports") was materially complete and reviewed by the Servicer prior to its
submission for inclusion in the monthly reports issued by the Trustee under the
Pooling and Servicing Agreement and all required reports required to be
submitted by Servicer to Trustee pursuant to the Pooling and Servicing Agreement
(the "Servicer Reports") have been submitted by the Servicer to the Trustee;
2. Based on our knowledge, the information contained in the Servicer 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
the period ending December 31, 20___;
3. Based on our knowledge and the annual compliance review required under
[Insert relevant Section of the Pooling and Servicing Agreement] of the Pooling
and Service Agreement, during the Relevant Period the Servicer has fulfilled its
obligations under the Pooling and Servicing Agreement in all material respects,
except as disclosed in the annual officer's certificate required under such
Section; and
4. The Servicer has disclosed to its certified public accountants all
significant deficiencies relating to the Servicer's compliance with the minimum
servicing standards and such deficiencies, if any, have been included in the
independent public accountants' report (the "Report"). The Report was created in
accordance with a review covering the Relevant Period in compliance with the
minimum servicing standards set forth in the Mortgage Bankers Association's
"Uniform Single Attestation Program" or similar standard as set forth in the
Pooling and Servicing Agreement.
Servicer Company Name
By: __________________________
Name:_________________________
Title:________________________
Date: _______________________
EXHIBIT P-2
FORM OF CERTIFICATION TO BE PROVIDED
BY THE TRUSTEE TO THE DEPOSITOR
Re: Xxxxxxx Xxxxx Mortgage Trust 2005-LC1 (the "Trust"), Commercial Mortgage
Pass-Through Certificates, Series 2005-LC1
I, [identify the certifying individual], a [title] of Xxxxx Fargo Bank,
N.A., certify to Xxxxxxx Xxxxx Mortgage Investors, Inc. and its officers,
directors and affiliates, and with the knowledge and intent that they will rely
upon this certification in delivering the Xxxxxxxx-Xxxxx Certification required
by the pooling and servicing agreement, dated as of December 1, 2005 and related
to the captioned commercial mortgage pass-through certificates (the "Pooling and
Servicing Agreement") (capitalized terms used herein but not defined shall have
the meanings assigned to such terms in the Pooling and Servicing Agreement):
1. I have reviewed the annual report on Form 10-K for the fiscal year
[___] (the "Annual Report"), and all reports on Form 8-K containing distribution
reports under the Pooling and Servicing Agreement filed in respect of periods
included in the year covered by the Annual Report (collectively with the Annual
Report, the "Reports"), of the Trust;
2. Based on my knowledge, the information in these distribution reports
and any other information in the Reports prepared by the Trustee, 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 the Annual Report;
3. Based on my knowledge, the distribution information required to be
provided by the Trustee under the Pooling and Servicing Agreement is included in
the Reports.
Date: _________________________
Xxxxx Fargo Bank, N.A.,
as trustee
By:_________________________________
Name:_______________________________
Title:______________________________
EXHIBIT P-3
FORM OF CERTIFICATION TO BE PROVIDED
BY THE SPECIAL SERVICER TO THE DEPOSITOR
Re: Xxxxxxx Xxxxx Mortgage Trust 2005-LC1 (the "Trust"), Commercial
Mortgage Pass-Through Certificates, Series 2005-LC1
I, [identify the certifying individual], a [title] of LNR Partners, Inc.,
certify to Xxxxxxx Xxxxx Mortgage Investors, Inc. and its officers, directors
and affiliates, and with the knowledge and intent that they will rely upon this
certification in delivering the Xxxxxxxx-Xxxxx Certification required by the
pooling and servicing agreement, dated as of December 1, 2005 and related to the
captioned commercial mortgage pass-through certificates (the "Pooling and
Servicing Agreement") (capitalized terms used herein but not defined shall have
the meanings assigned to such terms in the Pooling and Servicing Agreement):
1. I have reviewed the servicing reports or information relating to the
Trust delivered by the Special Servicer to the Master Servicer and the Trustee
under the Pooling and Servicing Agreement, covering the fiscal year [ ];
2. Based on my knowledge, the servicing information in these reports
delivered by the Special Servicer, 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 these
servicing reports.
3. I am responsible for reviewing the activities performed by LNR
Partners, Inc. ("LNR") as Special Servicer under the Pooling and Servicing
Agreement and, based upon my knowledge and the annual compliance review required
under the Pooling and Servicing Agreement with respect to the Master Servicer
[,and except as disclosed on Schedule 1 hereto], LNR has fulfilled its
obligations under the Pooling and Servicing Agreement, including the provision
of all information and/or reports required to be submitted by LNR, as Special
Servicer, to the Master Servicer and the Trustee thereunder.
4. The accountant's statement delivered pursuant to Section 3.14 of the
Pooling and Servicing Agreement discloses all significant deficiencies relating
to the 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 Attestation Program for Mortgage Bankers
or similar procedure, as set forth in the Pooling and Servicing Agreement.
LNR Partners, Inc. Date: _________________________
By:_________________________________
Name:_______________________________
Title:______________________________
EXHIBIT P-4
FORM OF CERTIFICATION TO BE PROVIDED
BY THE CERTIFICATE ADMINISTRATOR TO THE DEPOSITOR
Re: Xxxxxxx Xxxxx Mortgage Trust 2005-LC1 (the "Trust"), Commercial
Mortgage Pass-Through Certificates, Series 2005-LC1
I, [identify the certifying individual], a [title] of LaSalle Bank
National Association, certify to Xxxxxxx Xxxxx Mortgage Investors, Inc. and its
officers, directors and affiliates, and with the knowledge and intent that they
will rely upon this certification in delivering the Xxxxxxxx-Xxxxx Certification
required by the pooling and servicing agreement, dated as of December 1, 2005
and related to the captioned commercial mortgage pass-through certificates (the
"Pooling and Servicing Agreement") (capitalized terms used herein but not
defined shall have the meanings assigned to such terms in the Pooling and
Servicing Agreement):
1. I have reviewed the annual report on Form 10-K for the fiscal year
[___] (the "Annual Report"), and all reports on Form 8-K containing distribution
reports under the Pooling and Servicing Agreement filed in respect of periods
included in the year covered by the Annual Report (collectively with the Annual
Report, the "Reports"), of the Trust;
2. Based on my knowledge, the information in these distribution reports
and any other information in the Reports prepared by the Certificate
Administrator, 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 the Annual Report;
3. Based on my knowledge, the distribution information required to be
provided by the Certificate Administrator under the Pooling and Servicing
Agreement is included in the Reports.
Date: _________________________
LaSalle Bank National Association,
as certificate administrator
By:_________________________________
Name:_______________________________
Title:______________________________
EXHIBIT Q
[Reserved]
EXHIBIT R
LIST OF SUB-SERVICING AGREEMENTS IN EFFECT ON THE CLOSING DATE
Sub-Serviced Loans Sub-Servicing Agreements
------------------ ------------------------
1100 South Xxxxx....................... Sub-Servicing Agreement dated as of
December 1, 2005, among GMAC Commercial
Mortgage Corporation, as Master
Servicer, and Financial Federal Savings
Bank, as Sub-Servicer
Barnegat Self Storage.................. Sub-Servicing Agreement dated as of
December 1, 2005, among GMAC Commercial
Mortgage Corporation, as Master
Servicer, and Columbia National Real
Estate Finance, LLC, as Sub-Servicer
Xxxxxxx Place.......................... Sub-Servicing Agreement dated as of
December 1, 2005, among GMAC Commercial
Mortgage Corporation, as Master
Servicer, and X.X. Xxxxxx & Company of
Texas, LP, as Sub-Servicer
Cavalier Office Building............... Sub-Servicing Agreement dated as of
December 1, 2005, among GMAC Commercial
Mortgage Corporation, as Master
Servicer, and Xxxxxxxx Capital LLC, as
Sub-Servicer
Duluth Station......................... Sub-Servicing Agreement dated as of
December 1, 2005, among GMAC Commercial
Mortgage Corporation, as Master
Servicer, and X.X. Xxxxxx & Company of
Texas, LP, as Sub-Servicer
Glendale Galleria...................... Pooling and Servicing Agreement, dated
and effective as of December 1, 2005,
among Xxxxxxx Xxxxx Mortgage Investors,
Inc., as Depositor, KeyCorp Real Estate
Capital Markets, Inc., as Master
Servicer, X.X. Xxxxxx Company, Inc., as
Special Servicer, LaSalle Bank National
Association, as Trustee, and ABN AMRO
Bank N.V., as Fiscal Agent.
Sub-Servicing Agreement, dated as of
December 1, 2005, between KeyCorp Real
Estate Capital Markets, Inc., as Master
Servicer, and Midland Loan Services,
Inc., as Sub-Servicer.
Governors Walk......................... Sub-Servicing Agreement dated as of
December 1, 2005, among GMAC Commercial
Mortgage Corporation, as Master
Servicer, and X.X. Melody & Company of
Texas, LP, as Sub-Servicer
Haven Court Office..................... Sub-Servicing Agreement dated as of
December 1, 2005, among GMAC Commercial
Mortgage Corporation, as Master
Servicer, and PSRS Administrative
Services, LLC, as Sub-Servicer
Holiday Inn Express -
Greenville, SC...................... Sub-Servicing Agreement dated as of
December 1, 2005, among GMAC Commercial
Mortgage Corporation, as Master
Servicer, and Laureate Capital LLC, as
Sub-Servicer
Xxxxxxxxx Crossing..................... Sub-Servicing Agreement dated as of
December 1, 2005, among GMAC Commercial
Mortgage Corporation, as Master
Servicer, and Xxxxxxxx Capital LLC, as
Sub-Servicer
Magnolia Village....................... Sub-Servicing Agreement dated as of
December 1, 2005, among GMAC Commercial
Mortgage Corporation, as Master
Servicer, and X.X. Xxxxxx & Company of
Texas, LP, as Sub-Servicer
Main St. Promenade..................... Sub-Servicing Agreement dated as of
December 1, 2005, among GMAC Commercial
Mortgage Corporation, as Master
Servicer, and X.X. Melody & Company of
Texas, LP, as Sub-Servicer
Monroe Retail.......................... Sub-Servicing Agreement dated as of
December 1, 2005, among GMAC Commercial
Mortgage Corporation, as Master
Servicer, and X.X. Xxxxxx & Company of
Texas, LP, as Sub-Servicer
Riverside Apartments................... Sub-Servicing Agreement dated as of
December 1, 2005, among GMAC Commercial
Mortgage Corporation, as Master
Servicer, and Xxxxxxx Financial, as
Sub-Servicer
Springhouse at Brandywine.............. Sub-Servicing Agreement dated as of
December 1, 2005, among GMAC Commercial
Mortgage Corporation, as Master
Servicer, and Columbia National Real
Estate Finance, LLC, as Sub-Servicer
Summertree Apartments.................. Sub-Servicing Agreement dated as of
December 1, 2005, among GMAC Commercial
Mortgage Corporation, as Master
Servicer, and Xxxxxxxx Capital LLC, as
Sub-Servicer
Surfside Garden Apartments............. Sub-Servicing Agreement dated as of
December 1, 2005, among GMAC Commercial
Mortgage Corporation, as Master
Servicer, and PFG Servicing
Corporation, LLC, as Sub-Servicer
The Park at Spring Creek............... Sub-Servicing Agreement dated as of
December 1, 2005, among GMAC Commercial
Mortgage Corporation, as Master
Servicer, and X.X. Melody & Company of
Texas, LP, as Sub-Servicer
Villa Cajon MHP........................ Sub-Servicing Agreement dated as of
December 1, 2005, among GMAC Commercial
Mortgage Corporation, as Master
Servicer, and PSRS Administrative
Services, LLC, as Sub-Servicer
Village at Berkeley Lakes.............. Sub-Servicing Agreement dated as of
December 1, 2005, among GMAC Commercial
Mortgage Corporation, as Master
Servicer, and X.X. Xxxxxx & Company of
Texas, LP, as Sub-Servicer
Village East........................... Sub-Servicing Agreement dated as of
December 1, 2005, among GMAC Commercial
Mortgage Corporation, as Master
Servicer, and X.X. Melody & Company of
Texas, LP, as Sub-Servicer
Walgreens-Idlewild..................... Sub-Servicing Agreement dated as of
December 1, 2005, among GMAC Commercial
Mortgage Corporation, as Master
Servicer, and Xxxxxxxx Capital LLC, as
Sub-Servicer
EXHIBIT S
CLASS A-SB PLANNED PRINCIPAL BALANCE
Class A-SB Planned Principal Balance Schedule
Date Principal Balance Date Principal Balance
---------- ----------------- ---------- -----------------
12/28/2005 88,067,000.00 9/12/2010 88,067,000.00
1/12/2006 88,067,000.00 10/12/2010 88,067,000.00
2/12/2006 88,067,000.00 11/12/2010 88,066,616.30
3/12/2006 88,067,000.00 12/12/2010 86,470,343.10
4/12/2006 88,067,000.00 1/12/2011 84,963,379.83
5/12/2006 88,067,000.00 2/12/2011 83,449,424.56
6/12/2006 88,067,000.00 3/12/2011 81,420,580.38
7/12/2006 88,067,000.00 4/12/2011 79,890,174.89
8/12/2006 88,067,000.00 5/12/2011 78,183,913.15
9/12/2006 88,067,000.00 6/12/2011 76,638,485.06
10/12/2006 88,067,000.00 7/12/2011 74,917,617.56
11/12/2006 88,067,000.00 8/12/2011 73,357,028.78
12/12/2006 88,067,000.00 9/12/2011 71,789,198.03
1/12/2007 88,067,000.00 10/12/2011 70,046,549.49
2/12/2007 88,067,000.00 11/12/2011 68,463,352.11
3/12/2007 88,067,000.00 12/12/2011 66,705,763.31
4/12/2007 88,067,000.00 1/12/2012 65,107,058.02
5/12/2007 88,067,000.00 2/12/2012 63,500,933.10
6/12/2007 88,067,000.00 3/12/2012 61,554,751.89
7/12/2007 88,067,000.00 4/12/2012 59,932,132.75
8/12/2007 88,067,000.00 5/12/2012 58,136,216.00
9/12/2007 88,067,000.00 6/12/2012 56,497,726.48
10/12/2007 88,067,000.00 7/12/2012 54,686,379.70
11/12/2007 88,067,000.00 8/12/2012 53,031,873.86
12/12/2007 88,067,000.00 9/12/2012 51,369,688.25
1/12/2008 88,067,000.00 10/12/2012 49,715,182.41
2/12/2008 88,067,000.00 11/12/2012 48,281,601.28
3/12/2008 88,067,000.00 12/12/2012 46,848,316.91
4/12/2008 88,067,000.00 1/12/2013 45,421,738.38
5/12/2008 88,067,000.00 2/12/2013 43,988,454.01
6/12/2008 88,067,000.00 3/12/2013 42,127,544.86
7/12/2008 88,067,000.00 4/12/2013 40,678,774.99
8/12/2008 88,067,000.00 5/12/2013 39,083,400.78
9/12/2008 88,067,000.00 6/12/2013 37,620,320.66
10/12/2008 88,067,000.00 7/12/2013 36,011,032.54
11/12/2008 88,067,000.00 8/12/2013 34,533,509.12
12/12/2008 88,067,000.00 9/12/2013 33,049,039.70
1/12/2009 88,067,000.00 10/12/2013 31,418,954.68
2/12/2009 88,067,000.00 11/12/2013 29,919,843.08
3/12/2009 88,067,000.00 12/12/2013 28,275,521.40
4/12/2009 88,067,000.00 1/12/2014 26,761,631.48
5/12/2009 88,067,000.00 2/12/2014 25,240,624.11
6/12/2009 88,067,000.00 3/12/2014 23,300,107.75
7/12/2009 88,067,000.00 4/12/2014 21,762,826.04
8/12/2009 88,067,000.00 5/12/2014 20,081,391.39
9/12/2009 88,067,000.00 6/12/2014 18,528,976.43
10/12/2009 88,067,000.00 7/12/2014 16,832,827.65
11/12/2009 88,067,000.00 8/12/2014 15,265,138.70
12/12/2009 88,067,000.00 9/12/2014 13,690,078.66
1/12/2010 88,067,000.00 10/12/2014 11,971,911.96
2/12/2010 88,067,000.00 11/12/2014 10,381,367.34
3/12/2010 88,067,000.00 12/12/2014 8,648,144.91
4/12/2010 88,067,000.00 1/12/2015 7,041,971.72
5/12/2010 88,067,000.00 2/12/2015 5,428,245.97
6/12/2010 88,067,000.00 3/12/2015 3,403,589.11
7/12/2010 88,067,000.00 4/12/2015 1,772,755.12
8/12/2010 88,067,000.00 5/12/2015 -
EXHIBIT T
LIST OF SERVICED MORTGAGE LOANS REQUIRING OPERATIONS AND MAINTENANCE PLANS
Glendale Galleria
Four Forest Plaza
Xxxx Lakes Health Plaza
Valley View Medical Building
Holiday Hills Village
Xxxxxxx of Chantilly
Samaritan Medical Tower
College Park Apartments
0 Xxxx Xxxxxx
Xxxxx Xxxxx Xxxxxxxxxx
Xxxx Xxxxxxx Apartments
Golden Terrace
Abbey Apartments
00000 Xxxxxxx Xxxxxxxxx
Xxxx Xxxx Shopping Center
000 Xxxxx Xxxxxx
Xxxxxxx Center
DFW East-West
DFW West
DFW East
Forest Park Apartments
Commerce Pointe
Xxxxxxxx Xxxx Shopping Center
Regency Park Apartments
Fox Lake Town Center
Villa Cajon MHP
Park Lane & Roundgrove Centers
Roundgrove Center
Park Lane Center
Tinton Falls Professional Building
County Fair Shopping Center
Sunrise Village Apartments
Williamsville Commons
Village East
Riverside Apartments
Ample Storage
EXHIBIT U
FORM OF MLMT SERIES 2005-CKI1 MASTER SERVICER NOTICE
[Date]
KeyCorp Real Estate Capital Markets, Inc.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx Mortgage Trust Series 2005-CKI1
Re: Amended and Restated Co-Lender Agreement, dated as of November 16, 2005
(the "Glendale Galleria A/B/C Co-Lender Agreement"), between Xxxxxxx Xxxxx
Mortgage Lending, Inc., as Lead Lender, Allstate Life Insurance Company,
as Note B Holder and Teachers Insurance and Annuity Association of
America., as Note C Holder, and Note A Intercreditor Agreement, dated as
of November 16, 2005 (the "Glendale Galleria Note A Intercreditor
Agreement", together with the Glendale Galleria A/B/C Co-Lender Agreement,
the "Glendale Galleria Co-Lender Agreement"), between Xxxxxxx Xxxxx
Mortgage Lending, Inc., as Note A-1 Holder, and Xxxxxxx Xxxxx Mortgage
Lending, Inc. as Note A-2 Holder, relating to the Glendale Galleria Trust
Mortgage Loan
Ladies and Gentlemen:
This notice is being delivered to you pursuant to Section 3.02(g) of
the Pooling and Servicing Agreement, dated as of December 1, 2005 (the
"Agreement"), between Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor, GMAC
Commercial Mortgage Corporation, as master servicer (the "Master Servicer"), LNR
Partners, Inc., as special servicer, Xxxxx Fargo Bank, N.A., as trustee (the
"Trustee"), and LaSalle Bank National Association as certificate administrator,
which Agreement relates to the issuance of the Xxxxxxx Xxxxx Mortgage Trust
2005-LC1, Commercial Mortgage Pass-Through Certificates, Series 2005-LC1. To the
extent not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement.
Notice is hereby given that as of December 28, 2005, the Closing
Date under the Agreement, the Trustee is the holder of the Glendale Galleria
Trust Mortgage Loan (as defined in the Agreement), which is identified as "Note
A-2" under the Glendale Galleria Co-Lender Agreement, and, in that capacity, the
Trustee assumes the rights and obligations of the "Note A-2 Holder" under the
Glendale Galleria Co-Lender Agreement.
You are hereby directed to remit to the Master Servicer all amounts
payable to the Note A-2 Holder under the Glendale Galleria Co-Lender Agreement
and the Pooling and Servicing Agreement, dated as of December 1, 2005, between
Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor, KeyCorp Real Estate
Capital Markets, Inc., as master servicer and as X.X. Xxxxxx Company Inc., as
special servicer, LaSalle Bank, N.A., as trustee, and ABM AMRO Bank N.V., as
fiscal agent (the "MLMT Series 2005-MCP1 Pooling and Servicing Agreement"), to
the following account:
Account: [Collection Account]
Account #: [_______]
Title: [GMAC Commercial Mortgage Corporation, as Master Servicer for
Xxxxx Fargo Bank, N.A., as Trustee, on behalf of and in trust for
the registered holders of Xxxxxxx Xxxxx Mortgage Trust 2005-LC1,
Commercial Mortgage Pass-Through Certificates, Series 2005-LC1]
Location: [Bank Name]
You are hereby further directed to forward, deliver, or otherwise
make available to the Master Servicer, all reports, statements, documents,
communications and other information that are to be forwarded, delivered or
otherwise made available to the Note A-2 Holder under (i) the Glendale Galleria
Co-Lender Agreement, and (ii) the MLMT Series 2005-CKI1 Pooling and Servicing
Agreement, to the following: [address/facsimile/email address/telephone number].
Please also be advised that the Controlling Class Representative (as
identified under Section 3.25(a) of the Agreement and initially, [ ]) is
entitled to exercise any rights and powers of the Trustee, in its capacity as
Note A-2 Holder, under [Section 9] of the Glendale Galleria Co-Lender Agreement
and [Section 6.12(h)] of the MLMT Series 2005-CIK1 Pooling and Servicing
Agreement.
Very truly yours,
LaSalle Bank National Association,
as Certificate Administrator
By: _____________________________________
Name:
Title:
EXHIBIT V
LIST OF MERRILL TRUST MORTGAGE LOANS WITH LATE PAYMENT CHARGES DUE PRIOR TO
EXPIRATION OF THEIR PAYMENT DATE GRACE PERIODS
None.
